CASUAL LEGAL: New Guidance on SDAB Variance Powers

New Guidance on SDAB Variance Powers

By Sean Ward
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

The Alberta Court of Appeal recently issued a decision that provides some important direction for Subdivision and Development Appeal Boards (SDABs) when interpreting and applying their variance powers under the Municipal Government Act.

The decision dealt with the separation distance required between a library and a cannabis retail sales development under the municipality’s land use bylaw. The proposed cannabis development was less than the required 200m from a public library, such that the initial application for a development permit was denied. The decision was appealed to the SDAB, where the Board allowed the appeal by granting a variance to the separation distance requirement.

In its reasons, the SDAB accepted the Developer’s submission that “unless the Board can articulate what harm can come from granting a variance, then the variance should be granted. The Board must reasonably demonstrate the negative effect the proposed variance would have on the amenities of a neighbourhood and on the neighbouring parcels of land.”

The Library Board appealed to the Court of Appeal for several reasons, including on the basis that the SDAB had incorrectly interpreted and applied the variance test in s 687(3)(d) of the MGA. Specifically, they argued that a party seeking a variance from the requirements of the land use bylaw should bear the onus and burden of proof to justify the variance by establishing that it would not lead to any negative effects; as opposed to the SDAB’s approach in effectively requiring some proof that the variance would be harmful before declining to approve a requested variance.

The majority of the Court of Appeal, however, rejected that argument and dismissed the appeal. They concluded that although the SDAB’s use of the word “harm” was unhelpful and best avoided, it should be understood as referring to potential negative effects based on the proper test for granting a variance as set out in section 687(3)(d) of the MGA.  They found the SDAB did identify proper reasons in its decision for concluding a variance was appropriate, including that the library and development were separated by a major roadway, and that possible nuisance concerns were mitigated by the presence of a police station on the same site as the proposed cannabis development. As such, the Board did not improperly impose a burden of proof on the opponents of the variance, and the Court of Appeal concluded it was acceptable for an SDAB to observe that it had not been provided with any substantive planning reasons to suggest negative effects would arise from granting the variance.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or email casuallegal [at] abmunis.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca, or call 310-MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.