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Tribunal hearing focuses on FOIPs, affordable housing

A series of Freedom of Information and Protection of Privacy requests attempted to show the Town of Canmore acted in bad faith and went above its rights when deciding on the Smith Creek area structure plan.
20210401 TSMV Fire 0007
Homes near forest area in Stewart Creek at Three Sisters Mountain Village on Thursday (April 1). EVAN BUHLER RMO PHOTO

CANMORE – A series of Freedom of Information and Protection of Privacy requests attempted to show the Town of Canmore acted in bad faith and went above its rights when deciding on the Smith Creek area structure plan.

The second week of the Land and Property Rights Tribunal (LPRT) saw a focus on the right held by Three Sisters Mountain Village Property Limited (TSMVPL) under the 1992 Natural Resources Conservation Board (NRCB) decision, how it aligned with the decision and the affordable housing component of the area structure plan (ARP).

A focus on internal emails and documents – received through a massive FOIP request for more than 300,000 records by TSMVPL – between past and current members of Canmore council and Town staff.

An Oct. 25, 2019, email from former Town planner Josh Welsh asked for verification from manager of community and social development Lisa Brown, Town planner Alaric Fish, manager of planning and development Lauren Miller and Canmore Community Housing (CCH) executive director Dougal Forteath on the Town’s ask to TSMVPL that 25 per cent of all residential units be affordable housing and also a provision for employee housing.

Fish noted in an Oct. 28 reply: “Just to be clear – TSMV will not receive this news well at all. It is a dramatic departure from past (and existing) planning documents.”

Forteath subsequently responded that CCHC previously had said that the best practice – Spring Creek Mountain Village –  in Canmore at the moment was five per cent of overall residential was PAH. "That would likely be the lens through which council would look at/measure the TSMV application, the proposed 25 per cent is a significant increase to this," he wrote.

Jessica Karpat, one of the principal planners on the ASP for TSMVPL, said it was a “shocking” and a “very significant” ask for affordable housing, particularly since the previous standard for the Town of Canmore had been five per cent, as noted in Fish’s and Forteath’s emails.

Kelsey Becker Brookes, the Town of Canmore’s legal counsel, argued that the NRCB decision asked that 50 per cent of residential units be low-cost apartments, condominiums, multi-family and single family homes on lots less than 50-feet in width.

“This was important in the NRCB decision because the NRCB was concerned about affordability because the Town had raised it at the NRCB hearings,” she said.

Becker Brookes highlighted the decision asks whether the “proponent has adequately provided” and that they work with others to address the issue so that “the problem would not be made more serious.”

And while TSMV was being asked for more than the standard, Becker Brookes noted other developers don’t have an NRCB decision.

“That makes your circumstance different than other developments in Town,” she said.

Under the Municipal Government Act (MGA), a municipality has no legislative power to require affordable housing. It is often left between the municipality and the developer to negotiate a level of affordable housing.

In a document that was added at the last minute, which came over the strong objection of Gwendolyn Stewart-Palmer, a partner with Shores Jardine representing TSMVP,  because it may be unreliable and was not entered as evidence in the previous six months.

The tribunal granted the addition of evidence, which led to Becker Brookes highlighting several points of a portion of a transcript that was found in Town of Canmore records Monday morning.

She noted multiple instances of Rick Melchin, one of the original owners Three Sisters Resorts, being quoted as saying they would commit to lower income houses.

“The most fundamental commitment that I can make is that we will dedicate a significant amount of land to lower-income housing if our project is approved," he had written.

Karpat highlighted the ASP had committed to 10 per cent housing to CCH and that Melchin was also quoted as saying: “I don’t know that it is within the purview of our company to attempt to solve (affordable housing). There are issues that are well beyond what we are trying to accomplish.”

In an argument presented in the transcription, a Mr. Tilleman representing Three Sisters Resorts during the NRCB hearings stated: “There is a concern over the increase in the price of houses. … There is also a commitment by the applicant to dedicate a portion of the residential development lands to affordable housing in expectation that this could be formalized by a zoning bylaw.”

Ian Gray, a principal with Nichols Applied Management Inc., was one of the people completing the socio-economic study for the ASP, focusing on housing. He gave testimony on Tuesday (March 1) that showed the handful of references in the NRCB decision that referred to affordable housing.

He added he couldn’t find a specific definition for affordable housing in the NRCB decision, but the board asked for 50 per cent low cost housing units.

“I think it’s important to note the board did not place a condition on absolute prices for units,” Gray said. “The references made to housing affordability refer to being relatively low cost and this is to be achieved through houses that are less than 50-feet or forms of housing. It’s not related to the cost of the unit but rather it’s relative to the housing market at the time, which will ultimately determine the unit cost.”

Gray said the Bow Valley Regional Housing Needs Assessment was used to align with the Town’s affordable housing strategies. The 2019 report focused on how the valley would need about an extra 1,100 units of non-market housing by 2027.

The report made several recommendations, including allowing secondary and accessory suites, restricting short-term vacation rentals, increasing density and increasing the supply of land for development.

Gray said since the study was released at about the same time as the ASP was being worked on, the Town asked for the housing aspect to align and that the only other concern was employee housing. He added all units in Smith Creek would be ready to have secondary suites.

“It’s a very effective affordable housing solution because they’re one of the lowest cost per solution that’s available,” he said. “They’re really good at dispersing affordable housing across the community in an invisible way. They’re often seen as desirable.”

Gray also noted how “affordability is relative” and that with Canmore being the most expensive housing market in Alberta for a first-time homebuyer, “affordability itself is going to be relative to a higher baseline. I think that’s a very critical element we need to keep in mind.”

A further FOIP document was presented that had former mayor John Borrowman clarify that the wildlife corridor rested entirely on the province and that it is “above municipal authority”. He acknowledged any challenge to the decision would have to be in the courts or the Municipal Government Board – now part of the LPRT.

In the Nov. 23, 2020 email he sent to Whitney Smithers, the general manager of municipal infrastructure, and all council members at the time, Borrowman also stated how a municipality has no authority to have a developer to go above and beyond building codes and “our best opportunity to affect the design of buildings to meet our goals in this regard is through incentive bonusing.”

A subsequent Nov. 27, 2020, email from Smithers supported Borrowman’s statement. “Municipalities do not have the ability to require builders to comply to a higher standard than what is required in the building code,” she wrote. “We have worked with the developer to address this through an incentive program in the ASPs.”

Chris Ollenberger, the managing principle of QuantumPlace Developments, noted it was an acknowledgement that the bonus toolkit that was part of the ASPs, which was a method to create further density but the development being above the building code.

A Nov. 13, 2020 email from Smithers to Borrowman, former CAO Lisa de Soto and Miller said because of the bonus density, it would put them over the NRCB decision by about 600 units. However, if the changes were OK with the Town, “what TSMV has proposed generally aligns with the NRCB decision.”

Ollenberger said if the bonus density was taken out of the picture, they would be within the NRCB decision guidelines.

Ensuing FOIP emails brought forward by TSMVPL questioned whether the Town was acting in good faith during the development of the ASP.

In a Dec. 20, 2016 email to Fish, de Soto, former manager of municipal services Michael Fark and past Borrowman and Sean Krausert – then a councillor – asked “if” not “when” development should occur. The email added: “Could we question/challenge/open up the NRCB decision?”

Ollenberger said it was a “challenging and disappointing” email to read because it could be seen as a challenge to the NRCB decision, which the Town has no authority.

A subsequent March 2, 2017, email from Krausert to the former council, Fish, de Soto, current Town CAO Sally Caudill and Town planner Tracy Woitenko brought up a discussion he had with Canmore resident Steve de Keijzer that questioned the ability of Section 7-2 and 7-5 in the NRCB decision gave the Town “the ability to completely deny the application even if it were exactly what was proposed by the NRCB” and asked for clarity.

In a March 6, 2017, response from Fark after discussions with de Soto and the planning department, they didn’t agree with de Keijzer’s assessment.

“The clauses he cites do not state that the Town can deny an application if it is consistent with the NRCB decision. I would argue it in fact states exactly the opposite," wrote Fark. "A determination as to the Town’s authority would come (down) to a question of consistency with the NRCB decision.”

Ollenberger stated he and TSMV had no indication the Town had taken such a stance, which was prior to the 2018 terms of reference that set the playing field for the guidelines for the ASPs.

It acknowledged the NRCB decision multiple times and how it “prevails over a municipal, subdivision and development appeal board or Municipal Government Board authority to the extent that an application complies with the license, permit, approval or other authorization granted by the NRCB.”

In a May 16, 2019 internal presentation to managers on the TSMV comprehensive planning, 14 members of Town staff attended.

de Soto is recorded as saying a “paradigm shift” for the Town had taken place since they believed they had no control in the 1992 NRCB decision or process. However, the Town was looking for opportunities to have more say.

“We have now been talking about a sunset clause with the province for the NRCB for some 30 years now,” de Soto is recorded as saying.

In questioning on Feb. 24, Ollenberger said it was surprising and TSMVPL was unaware the Town of Canmore had been searching for an out.

The bulk of the testimony by Ollenberger and Karpat provided background on the work that went into the ASP and working with the Town. Pearce Shewchuk and Gray, two principals with Nichols Applied Management Inc, who did the socio-economic study for the ASP also testified.

In opposing the development, the Town of Canmore’s legal counsel raised nine issues. However, Stewart-Palmer showed none of the nine issues were found in the Feb. 9, 2021 request for decision report to council that led to first reading.

It was further shown Town staff believed the ASP was generally aligned with the 1992 NRCB decision.

Becker Brookes noted Town staff did say the ASP “was generally consistent with the NRCB decision” but concerns were still raised.

Throughout the roughly four-hour cross-examination of Karpat on Monday (Feb. 28), Becker Brookes focused largely on the housing numbers in the ASP compared to the NRCB decision and the wording of affordable housing.

Becker Brookes questioned the types of housing and affordable housing asked for in the 1992 NRCB decision compared to what was in the Smith Creek ASP.

In cross-examination on Feb. 24, Becker Brookes raised the description of the NRCB decision, which called it a “destination resort project”. The original project had proposed four golf courses, six hotels – with only one course and one hotel being completed – and more than 6,200 homes.

She said it was those factors that helped lead the NRCB to determine it was in the “public interest”.

In a subsequent re-direction of Ollenberger, Stewart-Palmer showed a list of recreational activities from the NRCB decision and how the Smith Creek ASP had many of them.

The NRCB had three rationales of Canmore being restricted and housing prices beginning to skyrocket, second homes being developed in Canmore and land being needed for homes and the restrictions on development in Banff and Kananaskis leading to homes being needed in Canmore.

“I would not agree the NRCB decision has been invalidated over the passage of time. If anything, they were correct in these three reasons and there may even be some increased pressure as a result of not being able to execute the project,” Ollenberger said.

The hearing on the Smith Creek ASP will continue until March 10. The hearing on the Three Sisters Village ASP will run from March 21-31.