Parks Canada is set for another contentious showdown with the Town of Banff over what it sees as the municipality’s attempt to expand commercial development in the national park townsite.
Within two hours of an Oct. 12 deadline, Parks Canada filed an appeal against the Sept. 14 Municipal Planning Commission (MPC) decision that allowed a lawyer’s office to permanently operate in a district zoned for public service uses.
Parks Canada officials say the decision goes against the 2010 Banff National Park Management Plan, which clearly restricts commercial activities in public service (PS) districts.
“The MPC decision has the potential to erode the legislated commercial growth limits,” said Sandi Hicke, manager of municipal and realty services for Banff National Park.
The controversy stems from the fact the law office is based on PS lands – typically reserved for such uses as schools and churches – and not in Banff’s commercially-zoned lands where the commercial growth cap has applied since 1998.
The debate first began in 2007, when the MPC made a decision that paved the way for a lawyer’s office to open up in a building owned by the Bow Valley Credit Union at 221 Beaver St.
The development permit was for a temporary change of use of office space from ‘community recreation service’ to ‘professional, financial, health and office space’ in the PS district.
Parks Canada fought the issue at both Banff’s Development Appeal Board and at the Alberta Court of Appeal amid fears the decision eroded the commercial growth regulations – but lost its battle on both occasions.
Since that time, the lawyer’s office has operated on the main floor of the building and, earlier this year, the credit union sought to extend the temporary development permit to November 2015.
In a letter to the Town of Banff, credit union officials said the existing lease with the law office was for four years and contains an option to renew for an additional four years.
“It is unrealistic and uncommon to enter into commercial leases for periods of one year,” officials said in the letter. “Financial success is dependent on securing long-term premises for the tenant.”
On Sept. 14 this year, administration recommended MPC extend the development permit for a temporary change of use for a four-year period – but MPC decided to make it a permanent change of use.
Hicke said the application to MPC was premature given the ongoing review of the Land Use Bylaw pertaining to the public service district and the original temporary development permit was valid until May 2013.
“The application for the development permit was also for a temporary extension, yet the MPC granted permanent approval,” she said.
In 2007, town administration said the implication of approving ‘professional, financial, health and office services’ at this location on a permanent, long-term basis may unexpectedly undermine the discretionary nature of the PS district.
“For instance, another ‘office service’ would not require a development permit to occupy the space in the future, but may not necessarily provide a resident-oriented service,” said planner Keith Batstone in his Nov. 14, 2007, report.
“For this reason, approval of ‘professional, financial, health and office services’ and other discretionary uses in the PS district should be decided on a case-by-case basis and development permits issued temporarily with five-year limits.”
In Batstone’s Sept. 14, 2011 report to MPC, he said the municipality’s legal counsel previously indicated approval is limited to the specific application by virtue of the fact the development permit was approved for a five-year temporary period.
He said the memorandum of agreement prepared by the Town of Banff and considered by the Court of Appeal outlines that Banff Development Appeal Board “did not give carte blanche to any professional services on the subject lands.”
“Every time an application for a development permit is received by the MPC a determination is made of the merits of each individual case, and every time an appeal proceeds before DAB a determination is again made on the merits of the individual case.”
Town of Banff officials have said they don’t see the move as an extension of Banff’s commercial footprint or circumventing the growth cap, rather a broader interpretation of what constitutes a ‘community service’ on PS land.
They say a lawyer’s office meets the purpose of the PS district, complies with the existing Land Use Bylaw and provides a needed community service in the townsite.
Randall McKay, Banff’s planning and development manager, said a date has not yet been set for the Development Appeal Board hearing.
While there have been no changes to PS development regulations since the last go-around in 2007, Parks Canada believes it has a stronger case this time given revisions to the new Banff National Park Management Plan.
Those revisions were approved in 2010, and state the use of lands within PS districts shall be limited to non-commercial uses of an institutional government, educational or community services nature.
Parks Canada has ultimate authority over all land use issues in the national park townsite.
The subject of PS lands will be reviewed in detail in early 2012 as part of the Land Use Bylaw review currently underway.
Both Parks Canada and the Town have said they will together, but, in the end, Parks Canada does have the power to reject the bylaw if they are not happy with how the Town deals with PS lands.
