The Calgary Court of Queen’s Bench ordered the Town of Canmore to purchase land or redesignate its use for Three Sisters Mountain Village Properties Limited (TSMVPL).
CANMORE – The Calgary Court of Queen’s Bench has ordered the Town of Canmore to purchase land or redesignate its use for Three Sisters Mountain Village Properties Limited (TSMVPL).
The land – known as the Upper Triangular Stair Lands area – is designated as a future development district. However, the upper triangular area has been a nature park district since the Canmore Land Use Bylaw was passed in 1999.
The July 27 court order found that the passing of the Land Use Bylaw 2020 allowed TSMVPL to file an application under Section 644 of the Municipal Government Act (MGA), which would require the city to buy the upper triangular lot or redesignate it.
“Canmore was obligated to initiate the remedial action of purchasing or redesignating the land within six months of the effective date of the [2020 land use] settlement,” Judge Glen Poelman wrote in his order.
The nature park district designation limits the use of the land to open spaces for recreation accessible to the public. However, provincial law allows that land that is restricted “may trigger an obligation for the municipality to purchase or redesignate the land.”
The city argued that the purpose, permitted and discretionary uses in the nature park district were not the same as a park or that they allowed for other uses of the park, but Hoelman called it ” unconvincing” in the order.
City attorney Kelsey Becker Brookes argued that the entire parcel of land must be taken into account – with the majority falling within the future development district – and therefore Section 644 would not permit a claim. .
“In my view, such an approach would do violence to the plain meaning of Section 644,” Hoelman’s order said. “It says nothing about a package. … If (as here) a municipality designates different uses for different parts of a parcel (split zoning), each designation must be considered individually under Section 644.”
The city argued that since the upper triangular area is a nature park district, it could only be used for park purposes and that the city should not have to purchase or redesignate the land under the MGA. .
He noted that the future development district allows for other uses such as recreational facilities, campgrounds, public buildings and agricultural uses.
“One could easily envision a campground development on the land balance of the staircase, complete with open space and trails on the upper triangular portion of the land,” Canmore said in his argument.
However, Hoelman said Section 644 of the MGA “places a limit on the zoning restrictions a municipality can impose on private land before triggering purchase or redesignation obligations.”
The City’s 2020 Land Use By-law aims to create a nature park district to protect open spaces and maintain them primarily in a natural state to enable recreation that maintains the land in its current state.
Permitted uses are open spaces, trails, signs, wildlife habitat patches and wildlife corridors, but an accessory building may be a discretionary use.
The city also attempted to enforce the two-year statute of limitations to bring a case in October 2013 when TSMVPL purchased the lands, but Hoelman found that the statute of limitations began each time a new bylaw for land use land was adopted.
Hoelman noted that the 1999, 2012 and 2020 land use regulations had “great similarities, but some differences” in the purposes and discretionary and permitted uses for land designated as a nature park district.
“The question remains open as to which land use regulation offered the owner of the upper triangular area the greatest potential for private use,” the order states. “It would partly depend on the development goals of the landowner at various times. It would also depend on the likelihood of obtaining development approval for the varying range of discretionary uses.
“The main point, however, is that the meaning of Natural Park District has changed in various regulations, particularly LUB 2020. Canmore has chosen to replace the old land use designation, although the name of the district has remained the same.”
The area is near Quarry Lake and Grassi Peaks, across from residential Homesteads along Three Sisters Drive. The land is approximately 3.4 hectares (8.5 acres) in size.
The future development district is 9.7 hectares (24 acres) and according to the City’s land information viewer, has a tax assessment this year of $88,000. The land is part of the provincial attenuation regulation.
The City and TSMVPL are also scheduled to hold a leave to appeal hearing at the end of September. Initially scheduled for July, it was postponed with a new date.
The leave to appeal will be heard by a judge of the Court of Queen’s Bench in Calgary and stems from city council’s vote in June to ask the court for leave to appeal the Land and Property Rights Tribunal’s decision. (LPRT) on the Smith Creek and Three Sisters Village Area Structure Plans (ASP).
The LPRT mandated the city to adopt the two ASPs after a 15-day hearing that included more than 110 hours of testimony in addition to thousands of pages of evidence presented.
The court ruled strongly in favor of TSMVPL, pointing out that the City could not refuse the two ASPs since the plans complied with the requirements of the 1992 decision of the Natural Resources Conservation Board and Section 619 of the MGA.
City Council approved a capital budget of $750,000 for anticipated legal fees with TSMVPL and the LPRT.
Sally Caudill, the city’s chief executive, said $37,000 in legal fees was spent preparing the court response. The total spent on the court — including the $37,000 — was $217,000.
The City continues to complete a large FOIP request that TSMVPL has made for several thousand documents and specific fees are not yet available.
TSMVPL has a $161 million lawsuit against the city and the previous council and Thunderstone Quarries has a $63.5 million lawsuit against the city as it owns land that is part of the Smith Creek ASP.
The Stair Grounds case was heard on June 30 and was filed by TSMVPL on June 17, 2021, pursuant to Section 644(1).
The section allows a plaintiff to seek relief if the land is “designated under a municipal land use by-law for use or intended as a municipal public building, school, park or recreation facility and the municipality does not own the land, the municipality must, within the following time limits: six months from the date of designation of the land » acquire the land, initiate the process of acquiring the land, making the land reserve land or amending the land use by-law to designate land for another use.
“Essentially, Section 644 requires a municipality to purchase land or designate it for another use if the section applies,” the court order said.
The order found that the upper triangle land was designated under the Land Use By-law and the municipality does not own the land, therefore the Section 644 claim was granted. .
“I grant an order in the nature of mandamus compelling Canmore to acquire the upper triangular area or designate it for some other use or intended use,” according to Hoelman’s order.
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