CANMORE – The ongoing legal saga over the lands owned by Three Sisters Mountain Village had another kink thrown in the wrench.
The Town of Canmore filed a statement of defence against Thunderstone Quarries Canmore after the company sued the municipality to amend its 2019 land use bylaw to allow for future development of the lands that were considered as part of the Smith Creek area structure plan (ASP).
If the future development district designation isn’t received, Thunderstone is asking for $63.5 million in restitution because of the “disguised expropriation” of the land.
In its March 11 defence statement, the Town of Canmore asks the claims by Thunderstone Quarries be dismissed.
“Canmore states that the action is an attempt by Thunderstone to intimidate Canmore to preemptively approve Thunderstone’s unsubmitted, uncrystallized development ideals, notwithstanding Canmore’s good faith actions taken in accordance with its legislated powers and obligations,” stated the Town’s defence statement.
The Town of Canmore's defence outlined council defeated the Smith Creek ASP because it opposed moving the urban growth boundary, it did not align with the Municipal Development Plan, rezoning of large swaths of land and the low density housing not being what was needed for Canmore’s growth.
“At all material times, Canmore acted reasonably, lawfully and in the good faith exercise of its duties,” the defence statement notes.
The lawsuit from Thunderstone Quarries alleges a 2019 bylaw by the Town of Canmore “unlawfully imposed fatal restrictions on Thunderstone’s use and enjoyment of the Quarry Land,” that was contrary to Section 617 of the Municipal Government Act.
“By removing virtually all of Thunderstone’s private rights to the use of the Quarry Land, or otherwise rendering them worthless, after the Quarry Land ceases to be used as a Quarry (the “disguised expropriation),” it noted.
“Thunderstone has consequently incurred losses, for which Canmore is liable to indemnify Thunderstone.”
None of the allegations have been proven in court.
The claim statement – which was filed Dec. 8, 2021 – outlines the history of the quarry land since 1960 and the different designations the Town of Canmore has had it under since 2012. It went from being a conservation of wildlands (CW) district, which was rescinded in 2020.
The land use bylaw amendments in 2019 led to the lands receiving a CW designation, which allowed only for a wildlife corridor or wildlife habitat patch.
The claim stated from 2015-21, the Town and TSMVPL worked to develop the Smith Creek ASP and that the 2018 terms of reference asked for the inclusion of the quarry land in the ASP.
“None of these Canmore administration personnel expressed concerns, or identified obstacles to Smith Creek ASP approval, on the basis that the Quarry Land had been designated as CW,” the lawsuit claims.
The claim asks the court to direct the Town of Canmore to amend its 2019 land use bylaw to redesignate the Quarry Lands – which comprise 25.67 hectares (63.43 acres) – for future development district and to remove the growth boundary in the Municipal Development Plan.
The Land and Property Rights Tribunal hearing for the Smith Creek ASP finished on March 9. The hearing for the Three Sisters Village ASP begins on March 21.
The lawsuit is the latest involving the lands owned by TSMVPL and covered under the 1992 Natural Resources Conservation Board (NRCB) decision.
In December, TSMVPL filed a civil lawsuit seeking for $161 million and claimed the municipality acted in bad faith, misfeasance and went outside its jurisdiction by denying the Smith Creek and Three Sisters Village ASPs. It also stated the Town has resisted development since the 1992 NRCB's decision.
TSMVPL has also filed for judicial review on both the Smith Creek and Three Sisters Village ASPs. Both reviews have been granted by the Court of Queen’s Bench, but are adjourned sine die, meaning there’s no timeline for it to be heard.
The Smith Creek ASP proposed an estimated population of 2,200 to 4,500 people and include between 1,000 and 2,150 residential units.
The ASP had upwards of 75,000-square-feet of light industrial and business space and about 125,000-square-feet of retail and commercial space for local services.
Three Sisters Village ASP could lead to between 3,000-5,000 residential units – depending on the bonus density – and between 5,500 and 10,000 visitors and permanent population. There would be up to 602,000-square-feet of retail and business space and about 188,000-square-feet of indoor recreation and entertainment, with 75 hectares of open space and 10 per cent of the housing deemed affordable.