Appeals
This phase illustrates opportunities for consultation during an appeal. Appeals are made to the Subdivision and Development Appeal Board (SDAB) and/or to the Court of Appeal (see next pages). Specific actions and steps will depend on who appeals the decision and whether the development officer approved or refused the application.
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Developer |
Community |
Planning and Development |
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| Key Question | Can we win the appeal? | Do we support the appeal? OR Is it worth the time and resources to appeal this project? |
Will the appeal result in a significant precedent or conflict with City policy? |
| BACKGROUND RESEARCH | |||
| Goals | Develop persuasive arguments and/or make compelling changes to support or overturn the decision. | Secure sufficient information to determine whether and how to be involved in an appeal. | Provide clear rationale for the decision to support or refuse the application. |
| Steps | Develop a clear understanding of the basis for the rejection, including level of discretion allowed, variances, etc. Develop well-researched arguments to substantiate keeping or changing the decision. | Understand exactly why the project was approved or rejected.
Review all relevant planning documents. Take photos of the site and neighbouring area. Clearly understand the community position on this project. Note: If you are speaking on behalf of the community league, be sure that you have direction from the community. The league must understand community viewpoints, and the person representing the league needs to clearly understand the league’s official position. Develop persuasive arguments to support and/or overturn the decision. |
Provide advice on policy interpretation and potential impacts if significant issues arise. |
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Tools |
Development permit approval with variances, p. 93 |
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CONSULTATION |
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Goals |
Secure community support for developer’s position on the appeal. |
Develop a community position and appeal or oppose the appeal. |
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| Steps |
Arrange to meet with the community league. Present a rationale for supporting or overturning the decision. Understand community priorities and show how this proposal advances those aims. Show how impacts of approval are dealt with OR are not an issue. If acting as the appellant, file the appeal. Solidify your position, outline points and prepare a presentation. Appear at SDAB to present a position. |
Organize a meeting of the community league or planning subcommittee.
If acting as the appellant, file the appeal. Encourage affected residents to attend the appeal hearing or write letters. Have the community league write a letter to Subdivision and Appeal Board (SDAB). Prepare position, outline points and prepare presentation. Appear at SDAB to present a position. |
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| Tools | Understanding Subdivision and Development Appeal Board process, p.73 Hints for making appeals, p. 75 | ||
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EVALUATION AND REFINEMENT |
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Goals |
Make whatever changes are needed to secure approval. |
Assess the decision and determine any further action, if necessary, with clear direction from the community. |
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| Steps | Demonstrate to SDAB how civic and community concerns are not a factor or are addressed in the revised proposal. | Determine if approval or rejection is important enough to require further community action.
Clearly articulate the terms and nature of community support for the project, in whatever form, with the developer and Planning and Development. Ask the department or SDAB to answer any other questions you might have. |
As the SDAB is independent of Planning and Development, the department simply responds to all technical questions when an application reaches this stage. |
| Tools | Understanding Subdivision and Development Appeal Board process, p. 73 Considering the Court of Appeal, p. 76 | ||
TOOLS FOR APPEALS
Tool: Understanding Subdivision and Development Appeal Board process
WHO AND WHAT
The Subdivision and Development Appeal Board (SDAB) is an independent body of Edmonton citizens appointed by City Council. The SDAB hears appeals from persons affected by Development Authority and the Subdivision Authority decisions. In this case, Planning and Development serves as these authorities.
Most appeals (80%) come from applicants challenging a Development Officer’s decision to refuse or put certain conditions on an application. The remaining appeals are launched by neighbours and other concerned citizens.
Subdivision appeals may only be lodged by the developer (or in some cases the Province of Alberta), although other affected parties may attend a subdivision appeal hearing.
TIMELINE
- The completed appeal form and fee must be received by the Office of the City Clerk within 14 days of the date of receipt of the Development Officer or Subdivision Authority decision.
- The SDAB must hold a hearing within 30 days of receipt of a written appeal.
- The SDAB notifies the applicant/appellant and all adjacent property owners of the appeal a minimum of five days before the hearing.
PREPARING FOR SDAB
- Make at least five copies of materials, one for each SDAB member.
- You may wish to seek professional advice or ask someone else to present your case, although citizens often represent themselves.
- If there is doubt whether the SDAB has the legal right to hear the appeal, it may be important to seek professional advice.
- To become more familiar with the process, consider attending a SDAB hearing before the date of your own hearing.
Tool: Hints for making appeals, p. 75
THE PROCESS
- Do not speak to members of the Subdivision and Development Appeal Board (SDAB) about an appeal or a potential appeal; this will disqualify them from participating in the hearing. Likewise, SDAB members do not discuss appeal cases with the Development Officer or the Subdivision Authority before hearings.16
- Those opposed to the decision speak first. There is no time limit for presentations.
- The SDAB makes its decisions behind closed doors, so you will not hear the debate.
- Decisions must comply with existing legislation and any other statutory plans. The SDAB may waive regulations of the Zoning Bylaw, however, if it feels the proposed development does not "unduly interfere" with neighbourhood amenities or conflict with the use prescribed in the Zoning Bylaw for that property.
- You will be called in to hear the decision. A written decision is issued within two weeks.
- SDAB decisions may be appealed to the Court of Appeal, but only on a point of law.
RESOURCES
City of Edmonton Web site www.edmonton.ca
Tool: Hints for making appeals
An appeal is a special type of presentation. Here are some suggestions for preparing appeals to both the Subdivision and Development Appeal Board and the Court of Appeal (see p. 76).
- Provide clear, concise and logical reasons.
- Be prepared to summarize your presentation.
- Specifically address the reasons stipulated in the refusal or statement of conditions.
- Be familiar with the site.
- Practice your presentation before you arrive.
- To help decision-makers understand your position and proposal, consider bringing photographs, illustrative material, well-prepared drawings or written submissions that everyone can read.
- Provide at least five copies, one for each SDAB member.
- Ask neighbours affected by the development to give you their written support or to speak at the presentation.
- Encourage attendance at the meeting. Decision-makers often gauge the level of interest by the number of people participating.
Tool: Considering the Court of Appeal
CONSIDERATIONS
The decision to proceed to the Court of Appeal cannot be made lightly, for the process requires a good deal of resources and time. Seriously consider retaining the services of a lawyer if your issue proceeds this far. Furthermore, be aware that there is no guarantee of success. That said, some important cases and issues have been resolved at the Court of Appeal.
TIMELINE
To challenge an SDAB decision, you must apply for a Leave to Appeal with the Appellate Division of the Alberta Supreme Court within 30 days of the decision date. (SDAB decisions are usually issued within 15 days of the hearing.)
CRITERIA FOR APPEAL
The decision of the Subdivision and Development Appeal Board is final unless it can be shown that the SDAB erred in one of these two areas:
- A matter of law (either in interpretation or application) or
- Jurisdiction (a decision was unclear, contradictory or ambiguous or illegitimate planning objectives were used)