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Town of Canmore seeking leave to appeal tribunal decisions on Smith Creek, Three Sisters Village ASPs

The Town of Canmore will file a leave to appeal the Land and Property Rights Tribunal’s order for it to adopt the Smith Creek and Three Sisters Village area structure plans.
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New houses under construction in Stewart Creek at Three Sisters Mountain Village last August. EVAN BUHLER RMO PHOTO

CANMORE – The Town of Canmore will file a leave to appeal the Land and Property Rights Tribunal’s order for it to adopt the Smith Creek and Three Sisters Village area structure plans.

On Tuesday (June 7), council directed staff to proceed with the leave to appeal prior to the June 15 deadline, which will see the Town of Canmore's legal representation seek the ability to file a formal appeal with the province’s Court of Appeal.

“Council is not anti-development. We need development that is aligned with what our community needs. The 1992 NRCB (Natural Resources Conservation Board) decision recognizes the interests of the local community and maintained the discretion of the municipality to decide how land in Canmore would be developed, neither of which was recognized in the LPRT decisions,” Canmore Mayor Sean Krausert said. “What we need is affordable, below-market entry-level housing to a significantly greater extent than proposed in the two bylaws, which is entirely consistent with the NRCB decision.”

Krausert and councillors Tanya Foubert, Jeff Mah and Wade Graham voted in favour to file the leave to appeal.

Councillors Joanna McCallum, Karen Marra and Jeff Hilstad each declared a pecuniary interest because they are all named in the civil lawsuit by Three Sisters Mountain Village Property Limited (TSMVPL) that was launched last December. The three councillors didn’t participate in the discussion and left the meeting.

TSMVPL has a $161 million lawsuit against the Town and the previous council, while Thunderstone Quarries has a $63.5 million lawsuit against the Town since it owns lands that are part of the Smith Creek proposal.

Mah and Graham explained any perceived conflict of their respective roles with Bow Valley Engage in advocating against the Smith Creek and Three Sisters Village ASPs and the long-term impact on the community still allowed them to participate.

Both indicated they feel strongly about the ASPs, but as councillors they have an obligation to have an open mind with the ultimate goal of representing the Town and its residents.

The leave to appeal would also include an application to stay the LPRT decisions, meaning until a court decision is rendered no development planning on the ASPs could continue.

Mah said he had heard from community members that the ASPs didn’t fit the need of the community.

“We’ve seen the staffing shortages, the family struggles to lay down roots and these proposed ASPs do not provide enough for our community, and if anything, will exacerbate our livability challenges," he said.

"Canmore wants to be recognized as a leader in managing the impacts on the environment and TSMVPL's two proposed ASPs missed that mark in terms of size and scope.”

Foubert said the NRCB decision still maintained a level of local planning authority over any proposed plans.

“The NRCB board in its 1992 decision had no desire to see the interests of local residents and stakeholders thwarted by the sterilization of the public process and local planning matters,” she said.

Land and Property Rights Tr... by Greg

In a statement, TSMVPL's president David Taylor, said if the leave to appeal is granted to the Town, TSMVPL remains confident in the two ASPs proceeding forward due to their alignment with the NRCB decision.

"TSMVPL respects last month's LPRT decisions. We took every step necessary to ensure our area structure plans for Three Sisters Village and Smith Creek adhered to the original decision of the Natural Resources Conservation Board permitting development of Three Sisters lands," he said. "If the court does decide to hear this appeal, TSMVPL absolutely believes that the court will conclude that the LPRT decisions were reasonable. The development of Three Sisters' lands were determined to be in the public interest by the NRCB and the LPRT agreed that our area structure plans are consistent with the NRCB decision."

The Town’s solicitor had two recommendations for council – have staff return with bylaws for council approval as ordered by the LPRT or to apply for a leave to appeal to seek an appeal with the Alberta courts.

A staff report stated it was assumed if council selected to adopt the ASPs as ordered by the LPRT, a public hearing wouldn’t be needed since it was the plans that had previously been submitted by TSMVPL.

Under Section 688 of the MGA, a municipality has the option to ask for leave to appeal if there are questions on the jurisdiction or the legal findings of the tribunal.

“The Town has received legal advice that there are issues on which it could seek permission to appeal,” the report said.

If the Town’s leave to appeal is successful, the case would move to the Court of Appeals to be heard by a judge. However, the appeal court would limit public participation, new evidence and findings of fact, and specifically look at an issue or issues raised by the Town.

The staff report highlighted how the court could accept or dismiss the leave to appeal, while any success could see the court have the LPRT re-decide on the ASPs.

While the report didn’t list specific financial costs, it stressed it wouldn’t come cheap to Town coffers.

Though the Town set aside $750,000 in the 2022 budget, if it were to go to the Court of Appeal it’s expected significantly more money would be needed and it would likely continue into 2023.

“The LPRT decisions to the Court of Appeal make it unlikely that this matter or other litigation between the Town and TSMVPL can be concluded in 2022 and will contribute to further litigation costs that may require future funding approvals from council,” according to the report.

Land and Property Rights Tr... by Greg

The LPRT ordered the Town to adopt the two ASPs on May 17 when it found that both plans were consistent with the 1992 NRCB decision.

The tribunal cited the 2020 Court of Appeal case Borgel v. Paintearth several times, which aimed to “prevent a municipality from blocking development that has been deemed in the public interest,” the appeal case stated.

The case was filed under Section 619 and provided the first legal precedent on the section in the Municipal Government Act.

The tribunal decisions also noted how the 1992 NRCB decision continues to remain in effect and the Town was legally obligated to pass the two ASPs since they were consistent with the provincial board.

The decisions outline how the previous Town council was in error for rejecting the ASPs.

Canmore was unable to “refuse the project altogether if it complies with the NRCB approval. Section 619 requires the Town to approve the application to the extent that it complies with the NRCB approval,” the Three Sisters Village ASP decision stated.

The tribunal also noted “there was no evidence disputing the reports and witness testimony, and the reports were prepared by qualified professionals; therefore, the LPRT accepts the evidence of the appellant’s witnesses that the Smith Creek ASP is consistent with the NRCB approval.”

At the hearings, the NRCB was also clear the 1992 decision was not up for debate or modifying, which the tribunal concurred.

The tribunal hearings lasted 15 days and had more than 110 hours of testimony in addition to thousands of pages of evidence presented.

Mah said the NRCB decision was made a generation ago and doesn’t accurately reflect the needs of the community through a modern lens.

“The outpouring of community involvement at that public hearing cannot be discounted. … Since becoming a councillor, especially after these LPRT decisions, I’ve heard significant stuff from the community how these LPRT decisions are not in the best interest of Canmore," he said.

"Our community needs development…We cannot live in a time capsule, but any development that occurs must be the right kind.”