CASUAL LEGAL: Tying up Loose Ends at the SDAB: Court of Appeal Weighs in on Tie Votes and Statutory Plans

Tying up Loose Ends at the SDAB: Court of Appeal Weighs in on Tie Votes and Statutory Plans

By Daina Young

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

The Alberta Court of Appeal recently considered the questions of the effect of a “tie vote” on the outcome of an appeal before a Subdivision and Development Appeal Board (“SDAB”).

Section 186 of the Municipal Government Act provides that “If there is an equal number of votes for and against a resolution or bylaw, the resolution or bylaw is defeated”. However, the legislation is silent on what happens in the event of a tie vote at the SDAB.

The Municipal Government Act requires municipal councils to enact a bylaw to establish a Subdivision and Development Appeal Board and which sets out the procedures to be followed by the Board. In the case before the Court of Appeal, the municipality had enacted an SDAB bylaw which provided that if there were an equal number of votes for and against an appeal, the appeal was denied. The Court of Appeal considered the validity of the municipal bylaw and found that it was within council’s authority to enact the bylaw in question, which the Court of Appeal noted was consistent with the common law rule that an appeal would fail in the event of an equally divided court.

This decision highlights the importance of having an SDAB bylaw which addresses what the outcome of an appeal will be in the event of a tie vote, and specifically confirms that it is within council’s authority to establish that in the event of a tie vote an appeal is dismissed. In the absence of bylaw of this nature, a SDAB decision arising from a tie vote could be vulnerable to challenge.

This decision also addresses the requirement that SDAB decisions comply with the applicable statutory plans. Although statutory plans are often characterized as “aspirational” in nature, the Court of Appeal found that this is not necessarily the case. Where the requirements of a statutory plan are mandatory or prescriptive in nature and would prohibit the issuance of a development permit for a discretionary use, a development permit should not be granted. This aspect of the decision highlights the importance of ensuring consistency between statutory plans and a municipality’s land use bylaw, to avoid a situation where there is a conflict between the requirements of the statutory plan and the uses permitted under the land use bylaw.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.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] auma.ca, or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA 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.