CANMORE – The Town of Canmore and Three Sisters Mountain Village Properties Limited will be heading to an appeal over the defeated Smith Creek area structure plan.
The appeal was filed under Section 619 of the Municipal Government Act (MGA) to the Land and Property Rights Tribunal on July 12. The move will mean a hearing will begin within 60 days and once completed, a decision has to be rendered within 30 days of the hearing’s completion, as per the legislation of Section 619.
A spokesperson for the Town of Canmore confirmed it had received the information from Three Sisters Mountain Village Properties Limited (TSMVPL).
The decision to appeal the defeated ASP comes a little after two weeks following TSMVPL being granted a judicial review of the Smith Creek ASP by the Court of Queen’s Bench of Alberta on June 25.
The judicial review, which may send concerns to those opposed to the previously proposed development on the lands owned by TSMVPL, was adjourned sine die, meaning there’s no timeline for completion in the same way an appeal has.
For now, the focus will be on the appeal process, but if needed, a judicial review of the decision would examine whether or not the defeated Smith Creek ASP was handled lawfully, council exercised their power reasonably and it was done so fairly by the Town of Canmore and council under the terms of the MGA.
The MGA requires all land planning matters such as an ASP be determined through a legislative framework to have a fair and thorough process for the applicant and the public.
In the court filings obtained by the Rocky Mountain Outlook, TSMVPL has eight basis for their claims, alleging the Town of Canmore failed to comply with Section 619 of the MGA, didn’t properly consider all relevant considerations and wasn’t in compliance with the 1992 Natural Resources Conservation Board decision.
The court documents also have TSMVPL claiming council considered factors outside its purview such as the wildlife corridor and undermining, which are provincial matters, and that the Town “breached the duty of fairness owed to the Applicant by failing to consider the legitimate expectations of the Applicant.”
TSMVPL is seeking an order of the court for seven remedies, but most notably to have Town council comply with the NRCB approval, which would lead to the Smith Creek ASP going ahead.
The Smith Creek ASP proposed an estimated population of between 2,200 to 4,500 and would have 1,000 to 2,150 residential units. There was also up to 75,000-square-feet of light industrial and business space as well as upwards of 125,000-square-feet of retail and commercial area for local services in the plan.
TSMVPL formally applied for judicial review on June 14 and a virtual hearing was held the morning of June 25. Justice April Grosse, who is based in Calgary, granted the review move forward.
There were two exhibits attached to the affidavit. One was the 239-page 1992 NRCB decision that permitted development of the lands. The second was the 188-pages from the April 27 special meeting of Canmore council that saw the Smith Creek ASP defeated at second reading. The exhibit also includes the Smith Creek ASP.
TSMVPL previously asked for mediation with the Town of Canmore on the defeated Smith Creek and Three Sisters Village ASPs in late May, but the Town rejected the ask with council already having voted on the matters.
The 1992 NRCB decision and Section 619 of the MGA allows a proponent to appeal a council’s denial of one or both of the two ASPs. Though there’s no time limit to file an appeal, but one is likely to be filed sooner rather than later following a council decision.
In the past, the Municipal Government Board would have handled the process; however, the province amalgamated the MGA and three other independent quasi-judicial boards in 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.
The lengthy public hearings on the proposed developments – which could have doubled the population of Canmore within 20 to 30 years – lasted six days and heard from several hundred people and many more written responses. Section 619 and the appeal process, however, stipulates the tribunal will only hear from the appellant and from the municipality an appeal is made against.
None of the amendments made by Canmore council would be considered since the ASPs were defeated, meaning the original plans submitted in late 2020 would be the only ones being decided upon.
In 1997, the previous owners – Three Sisters Golf Resorts – won an appeal against the Town of Canmore 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.