Controversial legislation that would allow Banff businesses to trade or sell existing built commercial space is one step closer to reality.
Banff council has given first reading to Bylaw 321 — which would allow the transfer of existing commercial floor area from a donating property to a receiving property — and will consider third and final reading July 8.
As the townsite approaches build-out under the commercial cap and there’s no more commercial development allotments left to be handed out in the lottery, officials say a so-called transferability bylaw may be a useful tool for property owners to acquire new square footage through peer-to-peer transactions.
“Our feeling is as the commercial development allotment pools dry up, that’s when pressure comes to bear on the existing floor area,” said senior planner Darren Enns.
“I don’t think you’ll see pressure in the next three to five years, but after that, I think we’ll see demand for transferability of existing commercial gross floor area.”
Banff has been subject to a commercial growth cap since 1998 and a lottery has traditionally been held to give potential developers a crack at getting the square footage they need for their developments.
Since then, approximately 200,000 sq. ft. of the additional 350,000 sq. ft. allowed under the cap has already been built, with another 150,000 sq. ft. pending construction.
The Town’s Land Use Bylaw has also allowed limited transfer of CDAs won in the lottery since 2005, but no provision has been made to allow the transfer or sale of existing commercial gross floor area.
Under Bylaw 321, for example, if commercial space is demolished, or if a building that was commercial is taken over for non-commercial purposes, that commercial space could be transferred to another site.
Administration says one way to ensure donated space does not revert to commercial space in future is through the municipality’s change of use process, where a development permit is issued.
In addition, administration recommends a development agreement be registered on title of the donating property, specifying the area to be transferred and its inability to be converted to future commercial use, or the possibility of a lease amendment from Parks Canada.
Councillor Leslie Taylor said she’s inclined to vote against this bylaw.
She said she believes the tradeoffs will be hard to track and enforce over time, resulting in situations where development rights that have been bargained away will be reactivated in the distant future — a sort of “have your cake and eat it too” situation.
“I also think that very few people will understand the technicalities involved, and, if we continue on an enforcement track that relies on complaints, there will be few or no complainants able to identify transgressors,” she said.
“Who will remember, 25 years from now, when a construction project is proposed for a vacant lot, that the development rights for that lot were bargained away a quarter-century ago?”
Mayor Karen Sorensen will likely support the bylaw.
“I don’t know what Banff will look like in years down the road, but to me this potentially offers some flexibility with precious square footage, while still respecting the cap,” she said.
“This is something that could be helpful in the future when all the space is gone and people who have been operating businesses see that some of the commercial square footage isn’t being used to its highest and best use.”
If the bylaw does get approval, Taylor convinced her colleagues of the need for a clause that would require any agreements made under Bylaw 321 to be publicly searchable on the Town’s website, or future technology, at all times.
“I think this makes it more transparent,” she said.