Subdivision and Office of the City Clerk

Development Appeal Board Main Floor, Churchill Building

10019 – 103 Avenue NW

Edmonton, AB T5J 0G9

Telephone: (780) 496-6079

Fax: (780) 496-8175

DATE: March 9, 2012

APPLICATION NO: 114274114-001

FILE NO.: SDAB-D-12-034

NOTICE OF DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD

This appeal dated January 13, 2012, from the decision of the Development Authority for permission to:

Construct a Freestanding On-premises Sign with 1.83 metres by 4.8 metres Animation panel and to install a Fascia On-premises Fascia Sign – Concordia (Channel Letters) and Concordia Video Displays (Pylon)

on Block F, Plan 9926758, located at 7128 - Ada Boulevard, was heard by the Subdivision and Development Appeal Board at its hearing held on February 2, and February 23, 2012. The decision of the Board was as follows:

February 2, 2012 Hearing:

MOTION:

“that this appeal be tabled to February 22, 2012 or February 23, 2012 at the written request of the Appellant”

February 23, 2012 Hearing:

MOTION:

“that SDAB-D-12-034 be raised from the table”

SUMMARY OF HEARING:

“At the outset of the appeal hearing, the Presiding Officer confirmed with the parties in attendance that there was no opposition to the composition of the panel.

SDAB-D-12-034 2 March 9, 2012

SUMMARY OF HEARING CONTINUED:

The appeal was filed on time, in accordance with Section 686 of the Municipal Government Act, R.S.A 2000, c. M-26.

The Board heard an appeal of the decision of the Development Authority to refuse an application to construct a Freestanding On-premises Sign with 1.83 metres by 4.8 metres Animation panel and to install a Fascia On-premises Sign – Concordia (Channel Letters) and Concordia Video Displays (Pylon), located at 7128 - Ada Boulevard NW. The subject site is zoned DC2.649 Site Specific Development Control Provision. The proposed development was refused due to a deficiency in the minimum required separation space from a Residential Zone, an excess in the maximum allowable Height, and an excess in the maximum allowable Sign Area.

The Presiding Officer asked Legal Counsel to speak to the issue of whether or not the Development Authority followed the directions of City Council, in order to address the matter of jurisdiction.

The Board heard from Mr. Noce, Legal Counsel for the property owner, Concordia University College of Alberta and the Appellant, Landale Signs & Neon Ltd. Mr. Noce was accompanied by Dr. Krispin, President and Vice Chancellor of Concordia University College of Alberta, Mr. Bloski and Mr. Brown, representing Landale Signs and Neon Ltd. Mr. Noce made the following points:

  1. They had two arguments with respect to whether the Development Authority followed the directions of Council in the DC2.649 Site Specific Development Control Provision.
  2. There is an existing Freestanding Static Sign on site and pursuant to Section 643 of the Municipal Government Act this is an opportunity to continue the Use as a legal nonconforming Use.
  3. The Development Authority failed to exercise her discretion in considering the Use that already exists.
  4. Further, the Development Authority misapplied the Sign Schedule regulations, and therefore, did not follow the directions of City Council. In this regard, the Development Authority should have applied the Minor Digital On-premises Sign regulations.
  5. If the Sign regulations for a Minor Digital On-premises Sign were applied, there would be no variance required in the maximum allowable Height or in the minimum required Separation Distance from a Residential Zone.
  6. The Development Authority should have applied these regulations rather than the regulations relating to Freestanding On-premises Signs.

SDAB-D-12-034 3 March 9, 2012

SUMMARY OF HEARING CONTINUED:

  1. There is no issue for the proposed Fascia On-premises Sign which faces east onto a major arterial roadway.
  2. The only issue in this appeal is the Freestanding On-premises Sign.

In response to questions by the Board, Mr. Noce and Dr. Krispin provided the following information:

  1. The Development Authority should have considered a different section of the Bylaw relating to Signs.
  2. Minor Digital Signs was not a recognized category when the initial sign was erected.
  3. With regard to the separation distance from the residential area, Mr. Noce advised that the existing Sign will be situated at the same location and the closest residences are owned by the Concordia University College of Alberta.
  4. They are not aware of how the Development Authority calculated the separation distance.
  5. With respect to Height, elevating the Sign is necessary for the Sign to be more useful, visible, and safer for traffic.
  6. Concordia University College of Alberta was recognized as a University in 1995.
  7. New signs are required to advertise their new status as well as the events taking place at the University.
  8. They have always obtained permits when required.
  9. Mr. Noce indicated that the POSSE information provided in the agenda is not complete in respect to the original sign permit.

The Board then heard from Ms. Bykowski, representing the Sustainable Development Department, who made the following point:

  1. Freestanding On-premises Signs are not a listed Use in the DC2.649 Site Specific Development Control Provision.

In response to questions by the Board, Ms. Bykowski provided the following information:

  1. The proposed Sign, not being a listed Use in the DC2.649 Site Specific Development Control Provision was not the first reason for the development permit being refused, which may have been an oversight on her part.
  2. The calculation of separation distance from a residential zone was provided by an employee of Landale Signs.

SDAB-D-12-034 4 March 9, 2012

SUMMARY OF HEARING CONTINUED:

In rebuttal, Mr. Noce made the following points:

  1. It is unfair for the Development Authority to provide a different reason for the refusal at this time.
  2. The Development Authority is functus once her decision has been made. It would be procedurally unfair for the Development Authority to give a new reason of refusal.
  3. Even if the Board accepted a new reason for refusing the Development Permit, the proposed Sign was a Permitted Use in the 1990’s.
  4. No letters were received in opposition to the proposed Sign from neighbouring property owner’s, therefore, there will not be a negative impact on neighbouring properties.
  5. The closest residential building to the Concordia University College of Alberta is used as a faculty annex.
  6. The proposed Sign will not be illuminated 24 hours per day and will be turned off from 11:00 p.m. to 6:00 a.m. The operating hours for the Sign will limit any potential negative effects on properties in the area.
  7. Dr. Krispin stated that the purpose of the proposed Sign is to provide information and events taking place at Concordia University College of Alberta.
  8. Mr. Noce outlined the difference between a Freestanding On-premises Sign and a Minor Digital Sign; however, a Minor Digital Sign can also be Freestanding.
  9. They would be agreeable to conditions imposed by the Board regarding the time period the Sign would be illuminated as well as the display intervals.

The Board then went in camera to consider the issue of whether the Development Authority followed the directions of Council when considering this development permit application.

DECISION:

“that the Board assume jurisdiction.”

REASONS FOR DECISION:

The Board finds the following:


SDAB-D-12-034 5 March 9, 2012

REASONS FOR DECISION CONTINUED:

1.  Section 641(4) of the Municipal Government Act, Chapter M-26 states despite section 685, if a decision with respect to a development permit application in respect of a direct control district

(a)  is made by a council, there is no appeal to the subdivision and development appeal board, or

(b)  is made by a development authority, the appeal is limited to whether the development authority followed the directions of council, and if the subdivision and development appeal board finds that the development authority did not follow the directions it may, in accordance with the directions, substitute its decision for the development authority’s decision.

2.  The Board concluded that the Development Authority did not follow the directions of City Council by basing her refusal on non-compliance with Freestanding Sign regulations when in fact Freestanding Signs are not a listed Use in the DC2.649 Site Specific Development Control Provision.

3.  The Board is satisfied that they have jurisdiction to hear the merits of the appeal as the Development Authority did not consider the listed uses in DC2.649 Site Specific Development Control Provision when refusing the proposed Development Permit.

SUMMARY OF HEARING CONTINUED:

The Board then heard from Mr. Noce and Mr. Bloski regarding the merits of the development permit application. Mr. Noce and Mr. Bloski provided the following information:

  1. Mr. Bloski outlined the specific dimensions of the logo and the lettering and confirmed that the dimensions of the Fascia Sign is 11.02 metres by 3.02 for a total Sign Area of 33 square metres.
  2. Mr. Noce indicated that the proposed Fascia Sign is not a solid Sign. The Sign is composed of individual lettering and considering the total square metres of the Sign would be unfair.
  3. The proposed Fascia Sign will not have a negative impact on the neighbouring property owners as the location of the Sign does not directly face the residential area, which is a significant distance away.
  4. The variances are minimized with the location of the Sign and the area of the Sign.
  5. They are willing to lower the Height of the logo portion of the proposed Fascia Sign which was estimated to be approximately 30 inches above the roof line.


SDAB-D-12-034 6 March 9, 2012

SUMMARY OF HEARING CONTINUED:

  1. The required Height variance is 3.93 metres and the required variance in Sign Area is 13.07 square metres for the proposed Freestanding On-premises Sign.
  2. The brightness of the Sign is adjustable.

DECISION:

that the appeal be ALLOWED IN PART and the Development GRANTED and the excess of 30.28 square metres in the maximum allowable Sign Area for any single Fascia On-premises Sign and the excess of 80.0 centimetres in the maximum allowable extension of the top of the logo portion of the Fascia Sign above the building roof or parapet wall be permitted, subject to the following condition:

1.  This Development Permit approval is for the Fascia On-premises Sign only.

REASONS FOR DECISION:

The Board finds the following:

1.  Section 641(4) of the Municipal Government Act, Chapter M-26 states despite section 685, if a decision with respect to a development permit application in respect of a direct control district

(a)  is made by a council, there is no appeal to the subdivision and development appeal board, or

(b)  is made by a development authority, the appeal is limited to whether the development authority followed the directions of council, and if the subdivision and development appeal board finds that the development authority did not follow the directions it may, in accordance with the directions, substitute its decision for the development authority’s decision.

2.  Fascia Signs are a listed use in the DC2 Site Specific Development Control Provision.

3.  The proposed Fascia Sign is in accordance with Schedule 59H and is designed in a way that is compatible with the architectural character and finish of the existing building on which it will be mounted.

4.  The proposed Fascia Sign faces Wayne Gretzky Drive and is a substantial distance from any residential neighbourhood, therefore, the variance granted in the maximum allowable Sign Area is mitigated.


SDAB-D-12-034 7 March 9, 2012

REASONS FOR DECISION CONTINUED:

5.  Based on the evidence submitted, the variances granted to the proposed Fascia Sign will not adversely affect neighboring properties.

6.  The Board is sympathetic to the needs of Concordia University College of Alberta to obtain a more visible presence in the community. The Board is unable to approve a Use which is not listed within the DC2 Site Specific Development Control Provision as only City Council is able to make that change.

7.  The existing Freestanding On-premises Sign was in place prior to the DC2 Site Specific Development Control Provision, therefore the existing Sign is a non-conforming structure and Use.

8.  The Board accepts the evidence submitted that there is an existing Freestanding On-premises Sign in the location of the proposed Freestanding On-premises Sign. However, the Board is not persuaded that it can authorize an extension to a non-conforming structure and Use when it is not a listed use within the DC2.649 Site Specific Development Control Provision.

9.  Regarding Counsel for the Appellant’s procedural objection, the Board is required to hear from the representative of the Development Authority under Section 687.1(b) of the Municipal Government Act, and the information provided was already contained on Page 6 of the hearing agenda or was provided in response to questions by the Board.

10.  Based on the above, it is the opinion of the Board, that the proposed Fascia On-premises Sign development would not unduly interfere with the amenities of the neighbourhood nor materially interfere with or affect the use, enjoyment or value of neighbouring parcels of land.”

IMPORTANT INFORMATION FOR APPLICANT/APPELLANT

1.  THIS IS NOT A BUILDING PERMIT. A Building Permit must be obtained separately from the Planning and Development Department, located on the 5th Floor, 10250 – 101 Street, Edmonton.

2.  When an application for a Development Permit has been approved by the Subdivision and Development Appeal Board, it shall not be valid unless and until any conditions of approval, save those of a continuing nature, have been fulfilled.


SDAB-D-12-034 8 March 9, 2012

3.  A Development Permit shall expire and shall no longer be valid after one year from the date of approval of the Permit, if no construction has been initiated. However, if the permit holder is unable to proceed pending a court decision involving the proposed development, time shall not run until such proceedings are finally completed. For further information, refer to Section 22 of the Edmonton Zoning Bylaw, 12800.

4.  Notwithstanding clause(3) above, if a Building Permit is issued for the development within the twelve month period, the Development Permit issued therefore shall not lapse unless and until the Building Permit so issued is cancelled or allowed to lapse by virtue of work not having commenced within the statutory minimum period.

5.  This decision may be appealed to the Alberta Court of Appeal on a question of law or jurisdiction under Section 688 of the Municipal Government Act, R.S.A. 2000, c. M-26. If the Subdivision and Development Appeal Board is served with notice of an application for leave to appeal its decision, such notice shall operate to suspend the Development Permit.