CANMORE – A judicial review was granted by the Court of Queen’s Bench of Alberta on the defeated Three Sisters Village area structure plan.
The review was submitted by Three Sisters Mountain Village Properties Limited (TSMVPL) on July 6 and the court granted the review on July 22 following a video hearing at the Calgary Law Courts.
However, similar to when the Smith Creek ASP was granted judicial review, it was adjourned sine die, meaning there’s no specific timeline to complete the review similarly to an appeal.
In court documents obtained by the Outlook, TSMVPL has formally appealed the Smith Creek ASP under Section 619 of the Municipal Government Act (MGA) to the Land and Property Rights Tribunal on July 12.
Under the MGA, an appeal has to begin within 60 days and once completed, a decision has to be announced 30 days following the hearing’s completion, per the legislation of Section 619.
While a similar appeal hasn’t been filed for the Three Sisters Village ASP, it would be surprising to not see one move forward before the end of the summer.
TSMVPL had 10 basis for their claims ranging from the 1992 Natural Resources Conservation Board (NRCB) approving development on the lands, the lengthy work by the applicant and the Town of Canmore and claiming the provisions of Section 619 of the MGA required council to approve the ASP.
The TSMVPL ask also alleged Canmore council erred in eight ways by overstepping their bounds on aspects that were considered such as the wildlife corridor and undermining and breached the duty of fairness owed to the applicant.
The remedies being sought are approving the Three Sisters Village ASP and the court provide direction on other potential reliefs.
Provincial law stipulates an applicant can file for judicial review up to six months following a decision.
If the judicial review begins, it would examine if the decision rendered for Three Sisters Village ASP was lawful, if council exercised their power properly and if it had been handled fairly.
The MGA mandates all land planning matters are determined through a specific legal framework for a fair and thorough process for both the applicant and the public.
TSMVPL had previously asked for mediation with the Town of Canmore following the defeat of Three Sisters Village ASP at third reading. The brief response from administration said they were unwilling to mediate a democratic vote by council.
TSMVPL submitted a 400-page affidavit, including the ASP and the 1992 NRCB decision.
Under the 1992 NRCB decision and Section 619 of the MGA, the proponent would be able to appeal council’s denial of one or both of the two ASPs.
Section 619 states that an approval by the NRCB, like what was granted to TSMV in 1992, "prevails, in accordance with this section, over any statutory plan, land use bylaw, subdivision decision or development decision by a subdivision authority, development authority, subdivision and development appeal board, or the Land and Property Rights Tribunal or any other authorization under this Part.”
The Municipal Government Board, along with three other independent quasi-judicial boards, were formally amalgamated into the Land and Property Rights Tribunal on June 2. The Land Compensation Board, the New Home Buyer Protection Board and the Surface Rights Board are also part of the tribunal and established under the Land and Property Rights Tribunal Act.
The joining of the four boards was tabled in November under Bill 48: Red Tape Reduction Implementation Act as part of the Alberta Recovery Plan. The province claimed the move will save money and streamline the process to help make it quicker to proceed with an appeal.
Section 619 stipulates the tribunal only hear from the appellant and the municipality the appeal is made against.
The tribunal would only consider the ASPs as they were submitted to the Town of Canmore in late 2020 since all amendments made by council at second reading were rejected when it was defeated at third reading in May.
If TSMV does appeal, it would be the second time the owner of those lands have taken the Town to the MGB.
In 1997, previous owners – Three Sisters Golf Resorts – won an appeal against the Town over a planning submission that was defeated in 1996. Following the appeal win, the Town filed its own appeal and the two sides eventually settled in 1998.
