MD OF BIGHORN – An update to Canmore’s off-site levy and the Dead Man’s Flats reaching its water and wastewater capacity limits had the MD of Bighorn council approve new water and wastewater connection fees in the hamlet.
The new bylaw was needed due to the municipality reaching its allowable pre-paid connection fees in a 2020 agreement with the Town of Canmore.
The Town also approved its off-site levy bylaw amendment last March, which had an increase in rates.
Hayley Gavin, Bighorn’s director of planning and development services, said Dead Man’s Flats had reached its capacity limits in 2023 and “exceeded it slightly.”
“We can no longer charge those connection fees,” she said, noting it was based on Canmore’s 2018 off-site levy rates.
She said in talks with the Town, a separate agreement for the remaining parcel in the Dead Man’s Flats commercial area will be had between Bighorn and the Town.
A staff report noted the MD and Town of Canmore reached a memorandum of agreement to connect Dead Man’s Flats to Canmore’s water and wastewater systems in 2013.
The agreement had a 20-year term, but a new agreement was made in 2020 to replace the 2013 agreement. The report noted the new agreement included flow limitations for water and wastewater and limitations on residential units, accommodation units and the commercial and industrial hectares available to be connected to the Town’s system.
The 2020 agreement had the MD pre-pay in installments and recoup the costs from property owners. A bylaw was passed by Bighorn council in 2021 to outline the amount.
However, the report highlighted Bighorn had “reached and subsequently exceeded the approved development permitted to be connected to the Town’s systems within the hamlet, triggering a review of existing development and future development needs, and thus additional negotiations with the Town.”
It noted Canmore council approved a new off-site levy bylaw earlier this year – which is under appeal by developers at the Land and Property Rights Tribunal (LPRT) – and it established higher rates.
Coun. Steve Fitzmorris asked with Canmore’s off-site levy bylaw under appeal, “how is this going to relate to with what’s going on currently at the LPRT with the Town of Canmore and their off-site levy bylaws?”
Gavin noted it doesn’t have any impact on Bighorn and “We can’t charge these rates for any new development in Dead Man’s Flats because we’ve reached the maximum development threshold in the agreement.”
The eight-day hearing took place in October. Throughout the hearing, the agreement between the MD of Bighorn and the Town of Canmore on Dead Man’s Flats was frequently mentioned.
During the hearing, the Town admitted to making more than $30 million in errors in its off-site levy bylaw. In addition, court documents outlined the cost allocation between the MD of Bighorn and the Town of Canmore for Dead Man’s Flats led to the Town and its taxpayers incurring $4.5 million in costs that should’ve been picked up by Bighorn.
Under the Town’s off-site levy bylaw, there are 17 specific zones, with Dead Man’s Flats comprising one and Harvie Heights another. The Town’s off-site levy bylaw, however, indicates specific costs for the 15 non-Bighorn zones.
The Municipal Government Act (MGA) mandates all information and data used to calculate an off-site levy be public, which would include the service agreements between the MD and the Town.
Section 648.2 of the MGA outlines that the methodology used needs to be “clear and reasonable”. Information and assumptions in creating an off-site levy, anything needed to replicate the levy and all calculations used to create a levy must be “publicly available.”
“For me, that’s very clear [that] they have to show how they arrived at that number,” said Eran Kaplinsky, a professor at the University of Alberta’s faculty of law. “You can’t have clear methodology if you don’t show how you arrived at your calculations.
Kaplinsky said “municipalities have to be transparent in how they arrive at their calculations. That’s one of the principles in the regulations.”
As of Jan. 1, 2021, the connection fee for a residential unit was $5,194, while a visitor accommodation unit was $3,463 and a commercial fee per hectare was $103,891.
The off-site levy bylaw passed by Canmore council earlier in the year saw significant increases.
In the March 5, 2024, Canmore council agenda, the Town noted it didn’t consult the MD of Bighorn during either its Utility Master Plan or off-site levy updates due to service agreements being in place.
It noted “if there were an increase to the fees applied to [Dead Man’s Flats] … the responsibility for covering the cost of that increase falls to the Town.”
In its Sept. 18, 2024, submission to the LPRT, the Town acknowledged “that its cost allocation for the [wastewater treatment plant] project did not consider projected future wastewater flows from Dead Man’s Flats.”
In the developers’ reply to the legal submission filed Oct. 2, 2024, it noted the Town admitted after the appeal was filed to about $4.5 million in costs being allocated to developers when it should’ve been incurred by the MD of Bighorn.
“The existing agreement with the MD of Bighorn for Dead Man’s Flats provides for a certain amount of development in Dead Man’s Flats. Units beyond this agreement will need to be addressed separately between the Town and the MD of Bighorn,” states developers’ reply submission.
“The appellants have significant concerns that infrastructure paid for with their off-site levies will be included as part of capacity sold to the MD of Bighorn for Dead Man’s Flats. The off-site levy bylaw does not address how future development in the MD of Bighorn will be addressed, and the Town did not consult with the MD of Bighorn to determine the potential of that future development. This is a significant deficiency in the off-site levy bylaw. The off-site levy bylaw should be invalidated with the requirement that the Town coordinate with the MD of Bighorn as required in the [off-site levy] regulation [Section] 3(2) (and incorporated into the enumerated grounds of appeal in s. 648.1(1)(b)).”
