CANMORE – A parcel of the Staircase lands was redesignated for future development by Canmore council following a Court of King’s Bench order to the Town of Canmore.
The final decision, which was made Feb. 28 following an earlier court order for the Town of Canmore to commence proceedings to either redesignate or buy the upper triangle of the Staircase lands – located along Three Sisters Drive between Peaks Drive and the access road to Quarry Lake – puts to bed one long legal process between Three Sisters Mountain Village Properties Limited (TSMVPL) and the Town of Canmore over the lands.
The lower two parcels of the Staircase lands are already designated for future development. Discretionary uses under future development include accessory building, agriculture, outdoor athletic and recreational facility, campground, open space, public building.
Affidavits obtained by the Outlook show a back and forth between TSMVPL and Town staff on differences of how to proceed, which ultimately led to the court becoming involved.
The Town’s 213-page affidavit largely focused on historic maps, land titles and planning documents, but emails dating back to 2019 showed TSMVPL wanted the Staircase lands to all be zoned the same, according to its 34-page affidavit.
QuantumPlace Developments principal Jessica Karpat said the intent wasn’t to proceed with development but to have the privately-owned land be zoned the same. The Town pushed to have a land use amendment application completed.
“Aligning the land use to the property line and appropriate land use designations in accordance with the Municipal Development Plan qualified it to be an administrative amendment,” she wrote to the Town in a December, 2019 email. “Asking TSMV to go through a land use redesignation in order to get FD (future development) land use on private lands is simply outrageous.”
In a back and forth between QuantumPlace Development’s managing principal Chris Ollenberger and the Town’s manager of planning and development Lauren Miller, Ollenberger reiterated the intent was to have the lands designated the same.
“We were just looking for consistency, and also it’s clear the NP (natural park district zoning) is inappropriate for the lands too as they are not a public park for recreational uses. … We believe that was done in error as even the zoning lines don’t line up with the property lines.”
Ollenberger added Section 644 of the Municipal Government Act (MGA) is applicable and “the Town is obligated to respect the MGA on this matter”, noting the six-month time period to rezone began on March 3, 2020, following a council decision.
Under Section 644(1), the Town is required to buy the land, start proceedings to buy the land or amend the land use bylaw to rezone it. Ollenberger wrote in a July 2 email to the Town’s general manager of municipal infrastructure, Whitney Smithers, that TSMVPL asked the Town to “an administrative amendment to the LUB” to go from natural park district to future development.
A land survey conducted by McElhanney commissioned by TSMVPL showed the Staircase lands were one parcel and should not be zoned for public use. Ollenberger asked in a Nov. 27, 2020 email to Smithers to include the rezoning in an omnibus bylaw, but Smithers said it should be a land use change since it had been a natural park district since 1999.
“That’s not the type of thing the omnibus is intended to address,” she wrote Nov. 27, 2020. Ollenberger wrote back saying “we are just looking to get the error addressed,” given it falls under an MGA requirement.
Smithers stated the Town doesn’t have the same opinion as TSMVPL, noting two land use districts on one parcel “is problematic,” but the Limitations Act allowed them up to two years to “exercise your right to appeal” but “from a timing perspective, I would question whether this is something TSMVPL would want to advance while their ASPs (area structure plans) are in play.”
A June 9, 2021 letter from Tim Bardsley, a lawyer with Dentons Canada LLP, informed the Town if the lands weren’t redesignated that legal proceedings would have to begin.
“We are advised that this resulted from errors made by the Town in determining proper boundaries within these lands for land use districts under its new land use bylaw,” Bardsley wrote to former CAO Lisa de Soto. “We are further advised that this situation remains unremedied despite numerous requests from our client’s representatives to address it.”
The court process began, with the legal ruling in favour of TSMVPL. The Court of King's Bench ordered the Town to either purchase the area of land or redesignate it for use by TSMVPL in a July 27 ruling.
The court order stated the adoption of the 2020 land use bylaw allowed for TSMVPL to file an application under Section 644 of the MGA to redesignate it or have the Town purchase the portion of 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.
Poelman added that Canmore’s argument in Section 644 has no application “would do violence to the plain meaning of Section 644.”
Council directed staff to begin proceedings to buy the section 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 and Land and Property Rights Tribunal to begin the expropriation of the land as per the MGA and Expropriation Act.
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 ruling all but puts governments on notice when attempting to do development freezes, zoning changes or environmental restrictions to sterilize private property. The impact will see governments use compensation if wanting to zone land a specific way, and it could see public officials more likely to pass development proposals or risk lawsuits.
The public hearing on the Staircase lands gave residents a chance to voice their opinions, but given the court order, the decision was a foregone conclusion.
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.
Former Canmore Mayor John Borrowman was the lone speaker, acting on behalf of the Rocky Mountain Heritage Foundation, presenting a neutral position.
He spoke of the public’s longstanding interest in maintaining the Quarry Lake lands – once provincial lands – and the role of Stan Milner in financially supporting the transition of the area to its modern appearance.
“The final purpose of the foundation was to consider acquiring additional lands and indirect structures thereon by purchase or otherwise for social and community purposes as required," he said. "And (for council to) have in mind the principle of preserving the Quarry Lake lands for the perpetual relationship of our community members and our visitors.”