CANMORE – The Court of Queen’s Bench in Calgary has ordered the Town of Canmore to purchase an area of land or redesignate its use for Three Sisters Mountain Village Properties Limited (TSMVPL).
The land – known as the upper triangular area of the staircase lands – is designated as future development district. However, the upper triangular area has been a natural park district since Canmore’s 1999 land use bylaw was adopted.
The July 27 court order found the adoption of the 2020 land use bylaw allowed for TSMVPL to file an application under Section 644 of the Municipal Government Act (MGA), which would require the Town to buy the upper triangular land or redesignate it.
“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.
The natural park district designation limits the use of the land to open spaces for recreation accessible to the public. However, provincial law allows land that is restricted “may trigger an obligation that the municipality purchase or redesignate the land.”
The Town argued the purpose, permitted and discretionary uses in the natural park district weren’t the same as a park or allow for other uses of the park, but Poelman called it “unpersuasive” in the order.
The Town’s lawyer, Kelsey Becker Brookes, argued the entire parcel of land should be considered – with the majority falling under future development district – and Section 644 therefore would not allow an application.
“In my view, such an approach would do violence to the plain meaning of Section 644,” Poelman’s order stated. “It says nothing about a parcel. … If (as here) a municipality designates different uses for different portions of a parcel (split zoning) each designation must be considered on its own under Section 644.”
The Town argued since the upper triangular area is a natural park district, it could only be used for park purposes and that the Town shouldn’t have to either buy or redesignate the land under the MGA.
It noted the future development district allows for other uses such as recreational facility, campground, public building and agricultural use.
“One could easily envision a campground development on the balance of the Staircase lands, complemented by open space and trails on the upper triangular portion of the lands,” Canmore said in its argument.
However, Poelman said 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’s 2020 land use bylaw has the purpose of a natural park district to protect open spaces and keep them mainly in a natural condition to allow for recreation that has the land be maintained in its existing state.
The permitted uses are open space, trail, sign, wildlife habitat patch and wildlife corridor, but an accessory building can be a discretionary use.
The Town also attempted to argue the two-year limitation period to bring forward a case in October 2013 when TSMVPL purchased the lands, but Poelman found the limitation period began each time a new land use bylaw is passed.
Poelman noted the land use bylaws from 1999, 2012 and 2020 had “broad similarities, but some differences” in purposes and discretionary and permitted uses for land designated natural park district.
“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 according to the Town’s property information viewer, has a tax assessment this year of $88,000. The land is part of the provincial undermining regulation.
The Town and TSMVPL are also scheduled for a leave to appeal hearing in late September. Originally scheduled for July, it was adjourned with a new date.
The leave to appeal will be heard by a justice at the Court of Queen’s Bench in Calgary 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 (LPRT) decision on the Smith Creek and Three Sisters Village area structure plans (ASPs).
The LPRT mandated the Town adopt both ASPs after a 15-day hearing that had more than 110 hours of testimony in addition to thousands of pages of evidence presented.
The tribunal soundly ruled in TSMVPL’s favour, outlining the Town couldn’t refuse the two ASPs since the plans were consistent with the requirements of the 1992 Natural Resources Conservation Board decision and Section 619 of the MGA.
Town council approved a capital budget of $750,000 for anticipated legal fees with TSMVPL and the LPRT.
Sally Caudill, the Town’s CAO, said $37,000 on legal fees was spent to prepare the response for the tribunal. The total spent on the tribunal – including the $37,000 – was $217,000.
The Town is continuing to complete a large FOIP request that TSMVPL made for several thousand documents and specific fees aren’t yet available.
TSMVPL has a $161 million lawsuit against the Town and the previous council and Thunderstone Quarries has a $63.5 million lawsuit against the Town since it owns lands that are part of the Smith Creek ASP.
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.
“In essence, Section 644 requires a municipality to either purchase land or designate it for another use if the section applies,” the court order stated.
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.