Judge overturns parking ban for Sunshine’s lower access road

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A federal court judge has overturned a decision by Parks Canada to ban parking on the lower access road to Sunshine Village, saying it was an unreasonable decision to make without any alternatives found to address the loss of parking.

Justice Leonard Mandamin issued a decision last week after hearing a judicial review requested by Sunshine Village on the decision by Banff National Park superintendent Dave McDonough to eliminate parking of vehicles during the ski season on any part of the access road beginning this upcoming season.

But Mandamin’s decision only overturned part of McDonough’s, because the federal court judge found the parking ban on the upper parts of the access road that are in avalanche hazard areas was reasonable and made with regard to the evidence.

Mandamin found that McDonough failed in his decision on the lower section of the road to consider a very important question: what would skiers and snowboarders arriving at Sunshine Village do with their vehicles upon finding no parking allowed on the access road and no other options provided?

“The superintendent failed to consider the evidence before him concerning the implications of prohibiting parking without adequate provision for alternative parking that he should have had regard for in making the decision,” wrote Mandamin in his ruling.

In his decision, Mandamin referenced a 2012 assessment by McElhanney Engineering on parking along the entire Sunshine access road, which found “without any other option, visitors would disregard the parking restrictions and park within high risk avalanche areas,” and that relocating roadside parking was the safest solution to mitigate the safety issues identified in the report.

That means heading into the 2017-18 ski and snowboard season, Sunshine and Parks will have to manage parking on the lower access road and work toward a solution to the complex issue of how to accommodate parking demands during peak times.

For Sunshine’s chief executive officer Dave Riley, the decision provides short-term relief and creates the opportunity to have all creative options considered fully for addressing parking at the ski resort.

“It is a short term relief, but we desperately want to get a long term solution and get back to the table with Parks Canada and work closely with them to get this resolved,” Riley said.

While Riley has a hopeful tone about working with Parks Canada on relocating the roadside parking, the company’s submission in the judicial review was that banning parking was done to force it to construct a parkade.

Mandamin found “little merit in the contention,” and Parks took issue with the accusation of making a decision for an improper purpose in its submissions to the court.

The Rocky Mountain Outlook requested to speak to McDonough about the decision after it was issued on Thursday (Sept. 21). Public relations and communications officer Christie Thomson provided a statement from Parks Canada on Monday (Sept. 25).

“In 2012, Parks Canada implemented parking restrictions to address the avalanche risk associated with parking along the access road. These restrictions will continue, and the restricted area will be expanded to include an additional one kilometre section of the upper access road as outlined in the federal court decision.

“Parks Canada will continue to work with Sunshine Village and we look forward to hearing their perspective on the provision for alternative parking. We will also continue to work with Sunshine Village to determine the best course of action to mitigate safety concerns on the Sunshine access road.”

Riley said he hopes the solution builds upon the cooperation he experienced working with Parks Canada during its wildfire fighting operations this past summer on the Verdant Creek wildfire. Sunshine was put under evacuation notice twice, and Parks crews staged out of the ski hill.

“While we were waiting for the court’s decision it was a lot of stress and tension and hopefully that is behind us now and we can set that aside and approach this on a really collaborative basis. That is what we intend to do and we hope Parks Canada will approach it in the same way,” Riley said.

The issue of parking on the access road is long and as Mandamin wrote in his decision, “The issues between the parties are complex and are not easily resolved.”

The access road to Sunshine is 7.7 kilometres and has two components – the 3.5 km upper section closest to Sunshine’s leasehold that has an avalanche risk – and the remaining 4.2 km.

While the road is not part of the lease, an important consideration for the relationship between the two parties is that the lease provides general access rights, meaning Parks is obligated to maintain the road, and provide avalanche control.

Sunshine has a parking lot that can accommodate 1,600 to 1,840 vehicles and the fact that it does not accommodate all vehicles on busy days – meaning weekends and holidays – is a well-known issue. Parking on the road has been allowed since 2006, but as an interim solution.

For Parks Canada, the parking of vehicles on the road became an issue after an avalanche triggered by Parks staff in the Bourgeau 7 avalanche path exceeded its historical runout boundaries and dumped debris on the upper access road in an area where vehicles had been allowed to park.

A week later, the first parking restriction was issued on the area affected by the avalanche for the remainder of that season and a new risk assessment was undertaken by McIlhanney.

That assessment led to the decision by Parks in 2012 to eliminate parking on the entire upper portion of the access road, but later it revised that decision to allow parking on one kilometre of the road under minimal avalanche conditions.

However, Sunshine sought a judicial review of the parking decision. Justice Michael Phelan dismissed the application for review, and a federal court of appeal upheld that decision in 2015.

Sunshine and Parks worked on developing the parking plan since the appeal was upheld in 2015. Part of the solution being considered was a parkade, which Sunshine has objected to in its negotiations with Parks, saying it is prohibitively expensive to construct a parking structure.

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Rocky Mountain Outlook