Frequently Asked Questions
about Development Permit Variances
and Construction Site Practices, including
-Driving on boulevards
If you have any questions or concerns, please send them in an email.
Thank you for your interest, and thank you for your involvement.
Q: Is there a limit to how much a Development Officer can vary rules?
The Zoning Bylaw only allows the Development Officer to vary the rules if there is something so different about the property that the developer can’t build what other people could build in the same zone without varying the rules.
That is, “a variance shall be considered only in cases of unnecessary hardship or practical difficulties peculiar to the Use, character, or situation of land…which are not generally common to other land in the same Zone:” Zoning Bylaw 12800, s.11.3.
Even then, the Development Officer can only vary the rules if the development would not “unduly interfere with the amenities of the neighbourhood; or materially interfere with or affect the use, enjoyment or value of neighbouring properties” and conforms to the required use of the land: Zoning Bylaw 12800, s.11.2.
Regardless, the Development Officer cannot vary height, density, Floor Area Ratio (how many times bigger the development is than the buildable property), or the General Purpose of the applicable Zone or Overlay – unless a Statutory Plan allows it.
The same criteria apply to buildings, if the developer is applying to renovate.
Q: Do neighbours find out about variances before a permit is issued?
A: Only if the variances apply to the Mature Neighbourhood Overlay.
The Mature Neighbourhood Overlay (MNO) is a set of regulations in the Zoning Bylaw that take precedence over all other regulations.
The General Purpose of the MNO is “to regulate residential development in Edmonton’s mature residential neighbourhoods, while responding to the context of surrounding development, maintaining the pedestrian-oriented design of the streetscape, and to provide an opportunity for consultation by gathering input from affected parties on the impact of a proposed variance to the Overlay regulations.”
The Development Officer cannot waive the operation of the MNO. The Court of Appeal has confirmed that the MNO is meant to provide procedural fairness, a principle of fundamental justice that cannot be altered by an administrative decision-maker such as a Develoment Officer.
The Overlay regulations are in Zoning Bylaw 12800, s.814: http://webdocs.edmonton.ca/InfraPlan/zoningbylaw/bylaw_12800.htm
Q: How do neighbours know when developers want to vary non-MNO rules?
A: They must contact the Development Officer for details.
Unfortunately, the Zoning Bylaw does not require notice to residents about variances to rules that are not in the MNO.
There are tools neighbours can use to track development permits and variances.
The Daily List of Development Applications provides information about development permits:
Permit applications are at Maps/Development Applications. Put in the date range, neighbourhood, street or avenue, and type of permit (default is ALL TYPES).
Permit applications have a job number attached. You can email the job number to city staff to ask about variances and other information.
Other Daily List Applications:
Zoning applications are at Maps/Land Applications.
Subdivision applications: City of Edmonton staff have been asked many times over the past year to post Subdivision Applications, because of the large number of lots being split across the city. However, staff have refused to post subdivision information.
Q: Is there an appeal process for variances?
After a variance has been permitted, Affected Parties can appeal the permit to the Subdivision and Development Appeal Board (SDAB).
The Board can only vary the Zoning Bylaw if the variance does not “unduly interfere with the amenities of the neighbourhood; or materially interfere with or affect the use, enjoyment or value of neighbouring properties.”
However, the Development Officer ought to refuse variances that cannot be justified. Recall that “a variance shall be considered only in cases of unnecessary hardship or practical difficulties peculiar to the Use, character, or situation of land…which are not generally common to other land in the same Zone:” Zoning Bylaw 12800, s.11.3. Unless the Development Officer can justify that the variance was required to relieve hardship, the Officer must not approve it. Then the developer can either choose to develop within the rules, or appeal to the SDAB. This shifts the cost of appeal to the developer, where it belongs.
Neighbours should not be forced to go to the trouble and expense of appealing variances that cannot be justified in accordance with the Zoning Bylaw.
Q: Have variances been permitted that don’t appear to be justified?
As one example: Rooftop patios are common now, especially on skinny houses.
The Zoning Bylaw stipulates a 2-metre setback with privacy screening.
The setback prevents the building from becoming massive.
However, setbacks have been varied to zero.
This certainly does not appear to be justified under the Zoning Bylaw restriction on variances.
Construction Site Practices
Construction Signs (Zoning Bylaw)
Q: Can advertising signs be on vacant properties and construction sites?
Sign regulations are in the Zoning Bylaw.
Construction sites must post two signs: (1) A city-approved sign with demolition permit information, and (2) A city-approved sign with construction permit information.
City-approved signs are white with blue writing, about 2 feet square, and show the permit number and contact information.
If the developer does not have these signs, it means the city has not issued a permit.
Construction sites must not post any other signs without a separate permit.
However, some signs can never receive a permit, such as signs that advertise a construction business in a residential area.
(Building Code, Occupational Health and Safety Act)
Q: Are construction excavations supposed to be shored?
The Occupational Health and Safety Act requires construction excavations to be shored to protect the safety of workers on site.
Occupational Health and Safety staff are very willing to visit construction sites where employees are inside unshored excavations.
The Alberta Building Code requires construction excavations to be shored to prevent soil loss and movement that can cause building damage and public hazards.
These provisions of the Code, however, are not enforced in Edmonton.
Q: Who enforces the Building Code?
A: Authorized Building Codes Officers, hired by an Accredited Municipality.
The Ministry of Municipal Affairs is ultimately responsible for the Building Code.
The Ministry delegates enforcement to the Safety Codes Council.
The Safety Codes Council is responsible for training and accrediting Safety Codes Officers, who are hired to enforce the Code.
Municipalities can be accredited to hire Officers to enforce the Code within the municipal boundaries.
There are strict formalities around training, accreditation, hiring, and enforcement.
Q: Is it acceptable for construction excavations to slump and collapse?
Construction excavations should never slump or collapse.
The Building Code contains clear provisions to support the walls of construction excavations to prevent soil movement and loss by water.
The goals are to prevent building damage and public hazards.
Tangentially, the Code has the effect of preventing damage to fences, sidewalks, and private land.
Q: Can anyone look up the Building Code?
The Building Code is not generally available to the public, even though it is a form of regulation under the Safety Codes Act.
In the public interest, then, we have excerpted the most recent Building Code Construction Excavation Regulations:
Excavation means the space created by the removal of soil, rock or fill for the purposes of construction.
OP4 Protection of Adjacent Buildings or Facilities from Structural
An objective of this Code is to limit the probability that, as a result of the design, construction or demolition of the building or facility, adjacent buildings or facilities will be exposed to an unacceptable risk of structural damage.
The risks of structural damage to adjacent buildings or facilities addressed in this Code are those caused by—
OP4.1 – settlement of the medium supporting adjacent buildings or facilities
OP4.2 – collapse of the building or facility or portion thereof onto adjacent buildings or facilities
OP4.3 – impact of the building or facility on adjacent buildings or facilities
OP4.4 – collapse of the excavation
OS5 Safety at Construction and Demolition Sites
An objective of this Code is to limit the probability that, as a result of the construction or demolition of the building or facility, the public adjacent to a construction or demolition site will be exposed to an unacceptable risk of injury due to hazards.
The risks of injury due to construction and demolition hazards addressed in this Code are those caused by—
OS5.1 – objects projected onto public ways
OS5.2 – vehicular accidents on public ways
OS5.3 – damage to or obstruction of public ways
OS5.4 – water accumulated in excavations
OS5.5 – entry into the site
OS5.6 – exposure to hazardous substances and activities
OS5.7 – loads bearing on a covered way that exceed its loadbearing capacity
OS5.8 – collapse of the excavation
OS5.9 – persons being delayed in or impeded from moving to a safe place during an emergency (see Appendix A)
4.2.4. Design Requirements
220.127.116.11. Design Basis
1) The design of foundations, excavations and soil– and rock-retaining structures shall be based on a subsurface investigation carried out in conformance with the requirements of this Section, and on any of the following, as appropriate:
- a) application of generally accepted geotechnical and civil engineering principles by a registered engineering professional especially qualified in this field of work, as provided in this Section and other Sections of Part 4,
- b) established local practice, where such practice includes successful experience both with soils and rocks of similar type and condition and with a foundation or excavation of similar type, construction method, size and depth, or
- c) in situ testing of foundation units, such as the load testing of piles, anchors or footings, carried out by a person competent in this field of work.
(See Appendix A.)
18.104.22.168. Subsurface Investigation
1) A subsurface investigation shall be carried out to the depth and extent to which the building or excavation will significantly change the stress in the soil or rock, or to such a depth and extent as to provide all the necessary information for the design and construction of the excavation or the foundations.
1) The identification and classification of soil, rock and groundwater and
descriptions of their engineering and physical properties shall be in accordance with a widely accepted system.
22.214.171.124. Design of Excavations
1) The design of excavations and of supports for the sides of excavations shall
conform with Subsection 4.2.4. and with this Subsection. (See Appendix A.)
126.96.36.199. Excavation Construction
1) Every excavation shall be undertaken in such a manner as to
- a) prevent movement that would cause damage to adjacent buildings at all phases of construction, and
- b) comply with the appropriate requirements of Part 8.
2) Material shall not be placed nor shall equipment be operated or placed in or adjacent to an excavation in a manner that may endanger the integrity of the excavation or its supports.
188.8.131.52. Supported Excavations
1) The sides of an excavation in soil or rock shall be supported by a retaining
structure conforming with the requirements of Articles 184.108.40.206. and 220.127.116.11., except as permitted in Article 18.104.22.168.
22.214.171.124. Unsupported Excavations
1) The sides of an excavation in soil or rock may be unsupported where a design is prepared in conformance with the requirements of Articles 126.96.36.199. and 188.8.131.52.
184.108.40.206. Loss of Ground
1) At all phases of excavation and construction, loss of ground due to water or any other cause shall be prevented.
220.127.116.11. Protection and Maintenance at Excavations
1) All sides of an excavation, supported and unsupported, shall be continuously maintained and protected from possible deterioration by construction activity or by the action of frost, rain and wind.
18.104.22.168. Protection of Adjoining Property
1) If the stability of adjoining buildings may be endangered by the work of excavating, adequate underpinning, shoring and bracing shall be provided to prevent
- a) damage to, or movement of, any part of the adjoining building, and
- b) the creation of a hazard to the public.
Q: Are construction excavations supposed to be fenced?
The Building Code contains clear provisions to securely fence construction excavations to prevent public hazards (hazards to anyone not associated with the construction site).
Tangentially, the Code prevents construction fencing from being placed on neighbouring property. The Code cannot create a situation in which trespass must occur. Therefore, required fencing must be placed fully on the construction site at the outset, and must be kept in place until construction is complete:
Section 8.2. Protection of the Public – 22.214.171.124. Fencing, Boarding or Barricades
1) When a construction or demolition activity may constitute a hazard to the public and is located 2 m or more from a public way, a strongly constructed fence, boarding or barricade not less than 1.8 m high shall be erected between the site and the public way or open sides of a construction site.
2) Barricades shall have a reasonably smooth surface facing the public way and shall be without openings, except those required for access.
3) Access openings through barricades shall be equipped with gates that shall be
- a) kept closed and locked when the site is unattended, and
- b) maintained in place until completion of the construction or demolition activity.
NOTE: Public way means a sidewalk, street, highway, square or other open space to which the public has access, as of right or by invitation, expressed or implied.
Q: Can we do anything about Edmonton’s construction excavation problems?
The media has often reported examples of construction excavations that undermine neighbouring property, causing damage to land, sidewalks, fences, and foundations. If the sites are fenced at all, the fencing is placed on neighbouring property because there is insufficient soil left on the construction site.
In September 2016, in the public interest, we made a formal request for the Safety Codes Council to investigate the application of the Building Code to construction excavations, so that by the start of the spring construction season Edmonton would have an enforcement mechanism for the Code.
By February 2017, the Council had not begun an investigation, so we met with the Council to expedite the investigation, and followed up with regular correspondence over the next months.
In April 2017, the Council determined that it could undertake an inquiry and assigned the file to a very competent investigator.
By August nothing had been resolved. Another construction season had passed, damage was done, and the Building Code remained unenforced.
We then submitted a Continuing Freedom of Information Request to the province to disclose Safety Codes Council records to us every three months for two years. Those records are the best way to determine why Edmonton has not been compelled to enforce the Building Code in relation to construction excavations.
Meanwhile, serious problems plague construction sites across the city. It is the norm to see excavations that are open and unfenced, slumping and unshored, creating property damage and public hazards, and causing intense conflict and grief.
Enforcing the Code would go a long way toward reducing construction conflicts and increasing acceptance of infill.
We will continue to press for a proper resolution of this matter.
Construction Trespass (Petty Trespass Act)
Serious trespass problems plague construction sites across the city. It is the norm for excavators to reach across property lines, causing damage, and for construction crews to regularly traverse neighbouring property, causing damage and public hazards, and causing intense conflict and grief.
The Petty Trespass Act contemplates these situations.
Q: Who is authorized to enforce the Petty Trespass Act?
A: Provincial Peace Officers in Alberta’s municipalities – except for Edmonton.
The Petty Trespass Act is in a list of provincial laws other municipalities’ Peace Officers are authorized to enforce. The Act is very useful in construction trespass situations for four reasons:
- The Act can be enforced with or without property damage.
- The threat to the Peace Officer is very low (usually the homeowner has already confronted the construction crew), so it allows Peace Officers to attend at a site to prevent crews from walking on neighbouring property.
- It contains a section that addresses trespass by machinery, including excavator damage occurs over a property line.
- The Act can be paired with the Provincial Offences Procedure Act to allow a Peace Officer to issue a notice to attend court, where a property owner has the opportunity to prove up to $25,000 in damages.
With this pair of laws, the Legislature has deliberately bypassed the need for property owners to sue for damages.
Q: Why doesn’t Edmonton enforce the Petty Trespass Act?
A: Edmonton claims not to have the resources to enforce the Act at infill construction sites, even though the Infill Compliance Team consists of Peace Officers who attend at construction sites to enforce rules intended to protect neighbouring properties.
When we discovered that Edmonton does not enforce the Petty Trespass Act despite being authorized to do so, we notified successive city officials through to the City Manager, and finally to Council. Nothing changed.
Finally, in January 2017, in the public interest, we made a formal request to the Director of Law Enforcement (responsible for Peace Officer enforcement).
Following that, the Director advised that Edmonton asked for permission to stop enforcing the Act and for the Edmonton Police Service to enforce it instead.
Naturally the EPS is far too busy to follow the Infill Compliance Team to construction sites to deal with trespass.
We have submitted a Freedom of Information request for details of the city’s discussions about relieving themselves of enforcing the Act. We have notified the Mayor, who last year directed staff to do a better job with infill construction trespass. We will report on the results of these actions.
Meanwhile: Edmontonians must enforce the Act themselves. This was the way the Act was enforced before the Legislature authorized Peace Officers to enforce it, knowing that police are too busy to do so.
The “power to lay an information (a charge) is found in the Criminal Code. The police have no particular power to lay a charge, but rather the same power as any other individual” (Ab.Justice, Crown Duties). The Crown Prosecutor reviews all charges before they proceed.
A citizen has the power to lay a charge under the Petty Trespass Act whether the police agree or not. The citizen has the power to ensure that the Provincial Offences Procedure Act is applied to the citizen’s satisfaction. It is not a matter for the police to investigate or to decide. It is not resource-dependent. The Crown Prosecutor reviews the charge, not the police. The duty of the police during this process is simply not to interfere with the citizen’s right to lay a charge.
If we cannot convince Edmonton’s Peace Officers to enforce the Act, the city will need to undertake training of the public, the Infill Compliance Team, and the EPS to understand this critical matter.
Construction Nuisance (Community Standards Bylaw)
Q: Does the Community Standards Bylaw apply to construction sites?
The Community Standards Bylaw prohibits:
- Messy construction sites: s.6
- Dust: s.6
- Open excavations: s.6
- Construction not completed within 5 years: s.6
- Derelict vacant buildings: ss.9 and 10
- Overflowing, uncapped waste bins: s.12
- Waste disposal on private land (includes construction waste, such as fill): s.12.1
Construction Equipment on Boulevards (Traffic Bylaw)
Q: Does the Traffic Bylaw apply to construction sites?
The Traffic Bylaw prohibits:
- Blocking sidewalks: s.4
- Blocking alleys: s.12
- Blocking highways: s.15
- Parking unattached trailers: s.20
- Placing waste materials on sidewalk or roadway: s.48
- Damaging boulevard trees: s.55
- Placing a fence on a boulevard: s.56
- Driving over sidewalk or boulevard: s.74
- Tracking material on highway: s.78
- Driving tracked vehicles on highway: s.79
Q: Are contractors allowed to drive over and damage boulevards?
The Traffic Bylaw strictly prohibits driving over curbs, boulevards, and sidewalks, except at a crossing authorized by the City.
An authorized crossing is defined as a properly permitted driveway.
This means that city staff cannot issue a permit for contractors to drive over boulevards.
However, mistakenly, staff issue free OSCAM permits to allow contractors to drive at will over curbs, boulevards, and sidewalks. OSCAM is not a permit to drive over boulevards. OSCAM stands for On Street Construction and Maintenance. It refers to work that requires temporary sidewalk and road blockages, usually for public safety:
Contractor damage to public property is staggering. In some neighbourhoods, residents have just gone through years of expensive infrastructure renewal, and city staff are allowing contractors to actively destroy it before it has even been paid for.
Curbs and sidewalks have been broken, boulevard sod has been ground to mud, and boulevard tree branches have been broken and roots compressed.
The upshot: Staff are allowing citizens to perform a prohibited activity. That illicit activity is causing public property damage. The City Manager is named as the body responsible for the enforcement of the Traffic Bylaw. Therefore, the City Manager is complicit in vandalism of public property when contractors are allowed to damage curbs, boulevards, and sidewalks.
Over the past year, we have brought this analysis to the attention of enforcement staff, management, the City Manager, and City Council.
Unfortunately, to date the City of Edmonton does not enforce the Traffic Bylaw to prevent public property damage. Nor does the City require contractors to take protective measures to prevent damage. Nor does the city require a security deposit for said damage should it occur.
Meanwhile, damage continues to occur. It is the norm to see excavators, cement trucks, dump trucks, and heavy equipment driving over and parked on boulevards and sidewalks, creating property damage and public hazards, and causing intense conflict and grief.
It is our position that the Traffic Bylaw is meant to prevent these things. Enforcing the Bylaw would go a long way toward reducing construction conflicts and increasing acceptance of infill.
We will continue to press for a proper resolution of this matter.
Extra Powers (Municipal Government Act)
Q: Does the Municipal Government Act apply to construction sites?
The Municipal Government Act allows an enforcement officer to issue an order to stop an activity, demolish a structure in contravention of a bylaw, remedy dangers (including open excavations), and improve unsightly property: ss.545, 546.