CANMORE – A recent Court of Queen’s Bench ruling on a section of the Staircase lands in Canmore will have the Town seek to buy it from Three Sisters Mountain Village Properties Limited.
Council directed Town staff to attempt to buy the upper triangle lands following a 65-minute in camera session to discuss options with legal representation.
“We have two options provided to us and this is the option I’m suggesting we take,” said Mayor Sean Krausert in his motion following the in camera session.
Town staff will now reach out to TSMVPL to potentially buy the section of land, which is another rung in the ladder in the ongoing legal matters between the two sides.
But while Town staff have been directed to potentially buy the land, it would need both parties to come to an agreement on price. If the two sides aren’t in agreement, it would return to the courts but could lead to a possible expropriation of land.
In Alberta, the approving authority is either the Crown, municipality or Land and Property Rights Tribunal which would determine if the process is fair and reasonable.
“It would require further exploration likely including discussion with litigation council, and the court decision contemplates the parties may require to return to court for further direction,” said Adam Driedzic, the Town’s solicitor.
“A further court proceeding may be necessary to determine the mechanics and practicals of a land transaction, and if council sought to go beyond the baseline requirement of the court order and acquire the entire staircase parcel that may require further expropriation proceedings that haven’t been explored.”
The report noted attempting to purchase the entirety of the Staircase lands would align with Town goals of having an open space buffer around Quarry Lake, add bike trails and walking trails to the Town’s inventory and a paved pathway to the municipal portfolio.
A staff report to council stated the formal market value appraisal of the upper triangle would be $63,750 and the total Staircase lands of $217,000.
The appraisal found the topography and undermining concerns had the land’s best use of a park or open space, according to the report. It also noted the $750,000 budgeted for TSMVPL litigation could be used to attempt to purchase land.
It also outlined a redesignation of the land would need to follow the court order that would also have one type of zoning on the land and would have no development due to physical constraints and discretionary uses. However, it added it has an uncertain planning impact and uncertain alignment with Town plans and policies.
It also added it would be “the least onerous option”, but may have a “negative impact and unintended consequences.”
While the option exists for the Town to appeal the ruling, Town staff recommended against it.
The Court of Queen’s Bench ruling was issued July 27 when it found the 2020 land use bylaw adoption allowed for TSMVPL to file an application under Section 644 of the Municipal Government Act (MGA).
“Canmore was obligated to undertake the remedial steps of purchasing or redesignating the land within six months of the effective date of the [2020 land use] bylaw,” Justice Glen Poelman wrote in his order.
Chris Ollenberger, director of strategy and development for TSMVPL, said they had yet to hear from the Town but it was early in the process.
“It’s good to bring some conclusion to this process. It’s been outstanding for quite some time,” he said. “There’s a mapped-out process to deal with the process.”
“If we can come to a number everyone’s happy with, that’s the best outcome. We all have data to start discussions. If we don’t agree, there’s an expropriation process under the MGA we can follow. It’s well mapped and we’re not reinventing the wheel.”
The upper triangle area has been a natural park district since the 1999 land use bylaw was adopted. It limits the land to open space use, but provincial law allows for a municipality to purchase or redesignate the land.
The Town argued the natural park district wasn't the same as a park. The Town also argued it shouldn’t have to buy or redesignate the land, but Poelman called it “unpersuasive.”
He noted Section 644 of the MGA “imposes a limit on zoning restrictions a municipality may impose on private land before triggering purchase or redesignation obligations.”
The Town further argued the two-year limitation period to bring forward a case started in October 2013 when TSMVPL purchased the lands. Poelman stated it began when the land use bylaw was adopted in 2020.
“It is an open question which land use bylaw offered the owner of the upper triangular area the best potential for private purposes,” the order stated. “Partly that would depend on the development objectives of the landowner at various times. It would also depend on the likelihood of obtaining development approval for the varying range of discretionary uses.
“The main point, however, is that the meaning of Natural Park District changed in the different bylaws, particularly LUB 2020. Canmore chose to replace the prior land use designation, even though the district name remained the same.”
The area is near Quarry Lake and Peaks of Grassi on the opposite side of the Homesteads residential area along the Three Sisters Parkway. The lands are roughly 3.4 hectares (8.5 acres) in size. The future development district is 9.7 hectares (24 acres) and is part of the provincial undermining regulation.
The Town and TSMVPL are also scheduled for a leave to appeal hearing in late September. The Court of Appeal met Tuesday (Aug. 16) to discuss the Stoney Nakoda First Nation, Bow Valley Engage and Natural Resources Conservation Board potentially being added as intervenors.
The leave to appeal will be heard by a justice at the Court of Appeal and stems from Town council voting in June to move forward with asking the court for permission to appeal the Land and Property Rights Tribunal decision on the Smith Creek and Three Sisters Village area structure plans (ASPs).
The staircase lands case was heard June 30 and had been filed by TSMVPL on June 17, 2021, under Section 644 (1).
The section allows for an applicant to seek relief if land is “designated under a land use bylaw for use or intended use as a municipal public building, school facility, park or recreation facility and the municipality does not own the land, the municipality must within six months from the date the land is designated” acquire the land, begin the process to acquire the land, have the land be reserve land or amend the land use bylaw to designate land for another use.
The order found the upper triangular lands were designated under the land use bylaw and the municipality doesn’t own the land, therefore, the application under Section 644 was met.
“I grant an order in the nature of mandamus requiring Canmore to acquire the upper triangular area or designate it for another use or intended use,” according to Poelman’s order.