CANMORE – A public hearing will be held to redesignate a portion of the Staircase lands following a court order to the Town of Canmore.
Canmore council voted to give first reading to redesignating a section of the lands – known as the upper triangle – from natural park district to future development district in line with the rest of the Staircase lands area. The public hearing will take place Feb. 28, 2023.
While the public hearing will give residents an opportunity to voice their thoughts, the conclusion is largely set in stone with a court order mandating the Town to either rezone the lands or expropriate it.
“We have a responsibility to the corporation and the community to remain in legal adherence to the court order that was made,” said Mayor Sean Krausert. “Personally, I’d prefer the land remain zoned as it has for some time as natural park area. That option is simply not in the best interest of the community given the substantial costs that would be involved.”
The court order mandated the Town begin an amendment to its land use bylaw, according to the Municipal Government Act (MGA).
While council voted to move ahead with the redesignation, a staff report noted council could return to an expropriation process depending on what is heard at the public hearing. However, given an impending court order deadline, staff emphasized to move quickly if council went that direction.
“If the catalyst for expropriation is representations at the public hearing, then the resolution to expropriate should be made immediately after concluding the hearing rather than proceeding to second reading of the bylaw,” the report stated.
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 in size and the future development district is 9.7 hectares with a tax assessment in 2022 of $88,000.
The Town’s solicitor, Adam Driedzic, emphasized to council it should not defeat the bylaw without commencing the expropriation process once again.
“If council were to defeat the bylaw without commencing expropriation proceedings the Town would fall out of compliance with the court order in having no active proceedings,” he said, adding council would have to direct staff no later than March, 2023 to start the process.
In a July 27 ruling, the Court of Queen’s Bench (now known as the Court of King's Bench) ordered the Town to either purchase the area of land or redesignate it for use by TSMVPL.
A portion of the land is designated as a natural park district, while the remainder is future development district and has been since Canmore’s 1999 land use bylaw was adopted.
The court order stated the adoption of the 2020 land use bylaw allowed TSMVPL to file an application under Section 644 of the MGA to redesignate it or have the Town purchase the portion of land.
The natural park designation limits the land use to open spaces for recreation accessible to the public, but provincial legislation outlines restricted land “may trigger an obligation that the municipality purchase or redesignate the land.”
During the legal proceedings, the Town’s contracted legal counsel Kelsey Becker Brookes attempted to argue that land should only be used for park purposes and the municipality shouldn’t have to buy or redesignate the lands, as per the MGA.
The Town argued the two-year limitation period to bring forward a legal case started in Oct. 2013 when the lands were purchased by TSMVPL, but the court ruling dictated it was when the latest land use bylaw was passed.
The court order gave the Town two options – redesignating or purchasing the land.
“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,” wrote Justice Glen Poelman in the court order.
Canmore council voted for Town staff to begin proceedings to buy the area of land, with staff estimating the upper triangle to be $63,750 and the entirety of the Staircase lands at $217,000.
The Town and TSMVPL were unable to reach an agreement on the price of the lands, which could have seen it return to the courts to begin the expropriation of the land as per the MGA and Expropriation Act.
A notice of intention to expropriate would have been filed by the Town with the landowner making a notice of objection. A quasi-judicial review would begin and if the two sides were unable to come to an understanding, the Land and Property Rights Tribunal would determine the disputed costs.
While no difference in prices were given, at the Nov. 1 council meeting, $500,000 in uncertain costs was mentioned multiple times for a significant difference in what the land was appraised at, the market rate and expectations of the landowner.
An October ruling by the Supreme Court of Canada also made it easier for developers and landowners to sue governments that remove reasonable uses of private land.
The case between Annapolis Group Inc. and the Halifax Regional Municipality puts a significant defence on the rights of landowners, which will make it far more difficult for governments to put regulations or pass bylaws that impact a private property owner.
The federal government and four provinces emphasized to the court the need for elected officials to have the ability to regulate land uses on private property that is in the public interest.
The ruling all but puts governments on notice when they attempt to do development freezes, zoning changes or environmental restrictions to sterilize private property. The impact will see governments use compensation if they want to zone land a specific way, and it could see public officials more likely to pass development proposals or risk lawsuits.
As per the MGA, councils are required to keep an open mind when ultimately voting and listening to information provided at public hearings.
However, with the court order ensuring one of two conclusions, Driedzic said council is still expected to listen to anyone coming forward at the public hearing, but ensure the court order is satisfied.
“Council, in this situation, is not solely accountable to the electorate,” he said. “Council is also functioning much like a board of directors of a municipal corporation that involves fiduciary duties to act in the interest of the corporation and part of that is overseeing and ensuring our legal compliance.”
