Executive Summary: Key Legal and Evidentiary Issues

• A developer challenged the Calgary Subdivision and Development Appeal Board's decision to overturn its permit for an eight-plex townhouse in Bowness.
   
• Central to the appeal was whether the Appeal Board provided justifiable, transparent, and intelligible reasons under the standard set out in Vavilov.
   
• Justices Feehan and Feth, forming the majority, found the Board's reasons conclusory and insufficient to explain why the development was deemed incompatible with the neighbourhood.
   
• Dissenting, Justice Antonio would have dismissed the appeal, finding the Board's reasons sufficient when read against the hearing record.
   
• Neither party disputed that the proposed development complied with all quantitative Bylaw requirements for density, height, setbacks, parking, and parcel coverage.
   
• Ultimately, the majority allowed the appeal and returned the matter to the Appeal Board for redetermination.
   

Facts of the case

1381034 Alberta Ltd, a developer, owns land in the Bowness area of Calgary zoned residential-grade oriented infill (R-CG) under Calgary's Land Use Bylaw, 1P2007. On December 13, 2024, the City of Calgary Development Authority approved the developer's application for a discretionary use permit to construct an eight-plex townhouse, comprising four primary suites, four secondary suites, and a detached four-car garage. The permit met all setback and height requirements, and the developer sought no variances. The Development Authority advised that the proposal was consistent with the Municipal Development Plan (MDP) and the Bowness Area Redevelopment Plan (Bowness ARP). A neighbour, Nelly Reuscher, appealed the permit to the Calgary Subdivision and Development Appeal Board (SDAB). Following hearings on January 16 and February 18, 2025, the SDAB issued its decision on March 4, 2025 (2024 CGYSDAB 0085), overturning the permit. Although the SDAB accepted that the proposal met Bylaw requirements for density, height, setbacks, parking, storage, and parcel coverage, it found the development "insensitive to and incompatible with the existing character and scale of the adjacent properties and the neighbourhood," and "simply too far out of scale." The developer appealed to the Alberta Court of Appeal, and permission to appeal was granted on three questions concerning the sufficiency of the Board's reasons and its interpretation of the Bylaw, MDP, and Bowness ARP.

Policy and legislative provisions at issue

Section 35(a) of Calgary's Land Use Bylaw requires the Development Authority to consider "any plans and policies affecting the parcel," while section 35(d) requires consideration of "the compatibility and impact of the proposed development with respect to adjacent development and the neighbourhood." Section 37(2) permits refusal of a discretionary use permit "even though it meets the requirements and rules of this Bylaw." The MDP's section 2.3.2(c) directs that infill development "complement the established character of the area" and avoid "dramatic contrasts," while section 3.5.1(a) supports retention of housing stock or "moderate intensification in a form and nature that respects the scale and character of the neighbourhood." The Bowness ARP requires new development to be compatible with the scale and form of existing and adjacent properties, though the decision is internally inconsistent on the precise wording and citation: the majority (para 8) cites this as section 6.3.3.4(a) and quotes it as referring to "homes," while the dissent (paras 56, 63, 67) cites section 6.3.4(a) and, at one point, quotes "developments" and "houses" rather than "development" and "homes." Both formulations are preserved here as they appear in the source rather than resolved into a single version. Section 687(2) of the Municipal Government Act requires the Appeal Board to issue written reasons for its decisions.

Reasoning and analysis

Writing for the majority, Feehan and Feth JJ.A. reviewed the Board's interpretation of the Bylaw on a correctness standard, as a question of law, and assessed the sufficiency of its reasons against the framework in Vavilov and R v Sheppard. The majority concluded that although the Board found the development "insensitive," "incompatible," and "too far out of scale," it never explained what those terms meant or how the development failed to meet them, particularly given that the proposal complied with all quantitative Bylaw limits and that comparable multi-family developments existed nearby, including an approved 10-plex. The majority held that the Board did not identify which metric — height, setback, or otherwise — drove its conclusion, leaving the developer without meaningful guidance for revising its proposal, contrary to the "certainty and predictability" values underlying planning law. Justice Antonio, dissenting, took the opposite view, finding that the Board's reasons, read together with the hearing record, transcript, and submissions, sufficiently disclosed why the development was rejected. She reasoned that the Board's reference to "scope and scale" captured the neighbours' concerns, that the comparators relied upon by the developer were distinguishable because they sat on busier or edge streets, and that the Board was entitled to weigh compatibility using the "scale and character" language found across the Bylaw, MDP, and Bowness ARP without formally defining the term. On the question of reconciling the MDP and Bowness ARP, Justice Antonio further concluded that any apparent tension between provisions favouring intensification and those favouring compatibility reflected the sort of policy balancing that fell within the Board's expertise, and disclosed no legal error.

Ruling and overall outcome

The appeal was allowed by a 2–1 majority (Feehan and Feth JJ.A., Antonio J.A. dissenting), with the Court finding that the Appeal Board's reasons did not meet the standard of justification, transparency, and intelligibility required by law. The matter was returned to the Appeal Board for redetermination, with notice of the new hearing to be given to all neighbours within 100 metres of the proposed development. The successful party on appeal was the developer, 1381034 Alberta Ltd. As this was a land use appeal rather than a claim for damages or costs, the decision does not include any monetary award; no amount was ordered, granted, or awarded to either side.