Calgary homeowner livid after city proposes bylaw change mid-fight

When Evgeny Zhuromsky won the right to appeal a major infill development next door, he thought he finally had a chance.

He figured the company developing a nine-unit row house on his next-door neighbour's land would be forced to pause until he finally got his day in court.

Now the rules could change.

Calgary city council is being asked to vote Tuesday on a bylaw change that would allow homebuilders to proceed with a project even if it's before the Alberta Court of Appeal. And Zhuromsky feels it's desperately unfair.

"Residents of Calgary … are penalized for not following or breaking bylaws, like, for example, if you over park or do not shovel your sidewalk on time," said Zhuromsky.

"That's a double standard because they require you and me and all Calgarians to follow bylaws and they allow themselves not to."

Zhuromsky lives in Windsor Park, one lot in from the corner. He lost his appeal to the Subdivision and Development Appeal Board, then won the right to have his appeal heard at the provincial court. But the developer has already dug a hole and started laying the foundation for the row house next door after the city recently released the permit, despite Zhuromsky's appeal.

These developments are happening across the city, one year after city council passed blanket rezoning last spring. They're mainly being built in inner-city neighbourhoods like Bowness, but they're starting to pop up in established communities farther from the city centre, too.

Many are being appealed to the Subdivision and Development Appeal Board, a quasi-judicial board that can revoke individual city permits. But that process can take months, and it's even longer if it's brought to court. And for developers, that means costly delays.

That could change if council approves this move on Tuesday. But lawyers warn that will make it much more expensive and difficult for Calgarians who want to stop a development that affects them.

Delays cost up to $500 a day

The designer of the row house development, Designhaus Studio, declined to comment on behalf of its client, Best Investment Group, since the case is before the courts.

The Calgary Inner City Builders Association, a group of more than 200 developers, didn't know about the proposed bylaw change. But chair Shameer Gaidhar has had concerns about the cost of appeals for a long time.

He said the appeal process is important — Calgarians deserve that right. But it costs an average of $200 to $500 per day when a project sits empty, he said.

"It costs money for the appellant, it costs money for the developer. In the end, there's a cost. That cost gets passed on to the end user. Let it be the renter, let it be the buyer. Whatever it is, someone has to pay for it. So we're eroding affordability," said Gaidhar.

Gaidhar said he needs to learn more about the bylaw change before commenting on what it means for developers.

Councillors, city decline to comment

Ward 11 Coun. Kourtney Penner, whose ward includes Windsor Park, wouldn't comment on the situation because it's related to Zhuromsky's appeal before the courts. 

Coun. Sonya Sharp's ward is hot with development. Her team reached out to city administration to get clarity on the bylaw change, however they couldn't give an answer — but indicated all councillors would receive an update ahead of the public hearing. So the Ward 1 councillor declined to comment.

The city also declined to comment on the particular part of the proposed bylaw change that would allow development permits to be released, even when a provincial appeal is underway.

"The City of Calgary believes that Calgarians are an important part of building a great city. Throughout the planning process Calgarians can provide feedback and comments for consideration. More information on how Calgarians can get involved in the planning process can be found in the Community Involvement Toolkit."

'A disastrous effect'

Randi Collins, a Calgary lawyer whose specialty includes real estate, said as the land use bylaw stands today, the city can't release development permits while a provincial appeal is underway. But she said it's well within the city's right to change its bylaw.

If it's approved, Collins said anyone who wants to stop a development from going ahead would have to go through another complicated and costly process: going to court and obtaining an injunction.

"It is actually a disastrous effect, in my opinion," said Collins.

"Essentially, the average person is going to have little recourse without expending large sums of money and navigating a very difficult legal system to do anything about it, which is concerning."

Collins said it speaks to a larger issue.

"Sometimes if the municipality is on board with a development, there's going to be little that you can do about it," she said.

"Municipal governments actually have quite a lot of rights and a lot of power, and the court system does hesitate to intervene unless there's a clear abuse of that power. So it's unfortunate for the average person."

Running out of time

It's been a long, difficult and expensive process for Zhuromsky to fight his next-door development, and he feels like he's running out of time.

The engineer, who's lived in his home in Windsor Park for 10 years, is still waiting for a court date to be set so his appeal can be heard. Until then, all he can do is watch construction proceed.

"[The developers] aren't doing anything that they're not supposed to be doing. It's the City of Calgary that … allowed them," said Zhuromsky.

While he considered applying for an injunction, he just doesn't think it's practical. So he's hanging on to hope that he'll win the appeal.

"I hope that if I win and they have to reapply, they will change the design so the structure that they are building now as we speak is per the municipal development plan, is complementary, sensitive and compatible with the rest of the community."

In the meantime, he plans to attend the public hearing on Tuesday to ask city councillors to say no to the change.