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Developer not obligated to build wildlife fence in Dead Man’s Flats

DEAD MAN’S FLATS – The Municipal District of Bighorn will have to return more than $212,000 to a developer and pay an additional $15,000 in legal fees after binding arbitration ruled the developer was not obligated to build a wildlife fence adjacent
MD of bighorn

DEAD MAN’S FLATS – The Municipal District of Bighorn will have to return more than $212,000 to a developer and pay an additional $15,000 in legal fees after binding arbitration ruled the developer was not obligated to build a wildlife fence adjacent to a residential development it built in Dead Man’s Flats.

The money was given to the MD as a letter of credit to ensure River’s Bend Development Inc. finished phase four of its residential and industrial development project.

Under conditions set out in its multi-stage development agreement, the developer agreed to build a wildlife fence adjacent to the residential development as long as the MD and the province built the remaining fence around the rest of the hamlet at the same time to keep wildlife out – which they did not.

As a result, the developer did not build its portion of the wildlife fence and the parties agreed it would not have to build the fence out of concerns a partial fence would trap wildlife.

“Obviously, there’s no surprise in this ruling. It’s just unfortunate that the MD decided to pursue it this way because, as you can see by the award, it’s going to cost the ratepayers a few bucks unnecessarily,” said Shane Jonker, president of River’s Bend Development.

“It’s one of those things where you put up the fight because you know it’s right and at the end of it, when you win, everybody expects you to be high fiving and jumping for joy. But you’re just left with a bit of disappointment that you had to do it in the first place.”

Martin Buckley, CAO for the MD, said he was disappointed by the ruling.

“Obviously, we felt the developer had an obligation to install the fence based on the multi-stage development agreement and the conditions of subdivision, but the developer felt otherwise and exercised the ability to arbitrate the matter as per the agreement and both sides made their case and the outcome is what it is,” said Buckley.

He emphasized arbitration was brought forward by the developer, not the MD.

“The developer initiated the arbitration process and we had no choice but to defend the matter.”

The long drawn out saga dates back to February 2010, when the developer presented its conceptual plan to council, including plans to build River’s Bend/Limestone Valley business park in Dead Man’s Flat east of Canmore.

The conceptual plan included using wildlife fencing as a way to minimize human-wildlife conflict, which was identified as a way to mitigate the issue in a report by Golder & Associates years earlier.

According to the binding arbitration, from the outset, it was recognized that the wildlife fencing would be a shared responsibility between the developer, the MD and the province.

According to the concept plan, the developer would be responsible for a portion of the fence adjacent to the residential and industrial sections of the development, while the provincial and municipal governments would be responsible for linking the fence back to the existing highway fence.

In December 2012, the MD granted subdivision approval with a number of conditions, including that the developer would not be required to install the wildlife fencing if the MD and/or province were not able to coordinate the timing or financing to install the wildlife fence.

On October 3, 2017, the MD received ‘As Built’ drawings, which included a note that the portion of the wildlife fence that was supposed to be built by the developer was “not required – not installed.”

Less than two weeks later, an engineer acting on behalf of the MD signed the final acceptance certificate (FAC), which was provided to the developer in January 2018.

The MD subsequently asserted that the wildlife fencing had not been completed in accordance to subdivision approval and refused to release the $212,000 letter of credit until the fencing was installed by the developer.

In the arbitrator’s analysis, he stated that, according to the subdivision approval, the developer did not have an “absolute obligation” to install wildlife fencing, because that obligation was contingent on the MD and/or the province finishing the rest of the fence.

He also noted that while the condition did not provide a specific timeframe for when the MD and/or the province had to build the fence, in his view a reasonable time frame was implied.

Part of the reason that the MD and the province did not build the fence in a timely manner was because both parties have been locked in a land-swap negotiation since 2003. At the heart of the matter is the MD’s proposal to build light industrial development in an area near a wildlife underpass along the Trans-Canada.

Complicating matters, in 2015 the Town of Canmore filed an appeal against the MD’s area structure plan (ASP), claiming the MD’s plans to set aside 29 hectares of land for light-commercial development would impact the functionality of the wildlife underpass and the adjacent wildlife corridor.

The Municipal Government Board dismissed the appeal in March 2017, allowing the MD to move forward with its ASP for Dead Man’s Flats and its land-swap negotiations.

Buckley said the negotiations with the Province have been “frustrating,” but was hopeful they would be concluded before the end of the year.

“We understand First Nations consultations should have concluded recently and the next steps of the process should hopefully be underway,” said Buckley.

Another major issue bogging down negotiations and the installation of the wildlife fence around the hamlet was the future of Three Sisters Campground in Dead Man’s, which was heavily damaged during the floods of 2013.

In November 2016, Alberta Environment and Parks announced its intention to close the overnight campsite to avoid replacing damaged infrastructure. Concerns surrounding wildlife-human interactions were also identified as a reason to discontinue overnight camping.

The unexpected announcement caught local residents and businesses by surprise and the negative reaction led the province to revisit its public consultation process.

After gathering more public input, AEP reversed course and announced in July 2017 that the 36-site campground would be restored to pre-flood conditions and continue to be an overnight camping destination.

According to Buckley, a key issue holding up the land-swap negotiations was whether the wildlife fencing should be installed on the east side of the campground, to include it within the hamlet, or install the fence on the west side of the campground to exclude it.

Depending on the outcome of that decision, that will dictate whether the province will pay for a portion of the fence.

“It’s important to note that the fence would remain on MD property,” said Buckley, explaining the MD would establish a right-of-way to ensure it can properly maintain the fence.

He said the design of the fence also needs to be worked out; in particular how it will cross Pigeon Creek.

The Dead Man’s Flats Community Association has indicated it is strongly opposed to fencing in the community, claiming that not a single resident in the hamlet is in support of the fencing plan.

“The fence committee was struck this spring based on a motion of the association that showed that there was no support, not one individual in favour, for the construction of a wildlife exclusion fence around the entire Hamlet of Dead Man’s Flats,” stated an internal memo provided by the association.

“Every resident in the community was notified by hand-delivered letter and social media that the MD was intent on revisiting the construction of a wildlife exclusion fence and the result was zero support.”

The internal memo goes on to state that residents in Dead Man’s Flats have lived without a fence for two decades without incident and since residents started moving into the River’s Bend community there has not been a single human-wildlife incident.

The memo also points to the recent human-wildlife coexistence report published in June, which only suggests using wildlife fencing for playgrounds, schools and highways.

Alberta Environment and Parks did not provide a comment.

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