CANMORE – A process to rezone a portion of land owned by Three Sisters Mountain Village Properties Limited will begin rather than going through a costly and time consuming expropriation process.
Town council directed staff to begin a land use bylaw amendment to rezone a section of the Staircase Lands for first reading before Nov. 29, and if a public hearing is required, to potentially take place before March 2023.
The move comes after TSMVPL declined the Town’s offer to buy the upper triangle portion of the Staircase Lands on Oct. 14. The Town appraised the upper triangle area to be worth $63,750, with the remainder of the Staircase Lands at $217,000.
Canmore Mayor Sean Krausert said the cost “became extremely high” and “there’s too much uncertainty and it’s our responsibility to watch the expenditures on the public purse.”
He said there was about $500,000 in uncertainty, leading to a significant difference in what the land was appraised for and factoring in the market rate and the expectations of the landowner.
Council members noted the court mandated the Town rezone or expropriate, leaving little leeway in what they could ultimately decide.
Coun. Tanya Foubert said it was important to have an open mind on the process when the municipality started on the path of purchasing the land, but as more information came in it became less possible.
“Our only other option is to rezone, which requires another process with some uncertainty because this was rezoned by the court,” she said. “I think it’s really important for the community to understand there’s a lot going on when it comes to managing the finances but also our assets. Acquiring this land, I wasn’t necessarily sure of the purpose.
“I think that by charting a different course we’re replying to the court order and we’re going to be avoiding a very costly process and potential decision against us in terms of the sales price.”
The upper triangle area of the Staircase Lands is about 3.4 hectares. According to the Town’s property information viewer, it has a tax assessment of $88,000 in 2022. It is also part of the provincial undermining regulation.
The lands, which are in the area of Quarry Lake and Peaks of Grassi, are zoned as natural park district. The remainder of the Staircase Lands are a future development district.
Coun. Joanna McCallum said it wouldn’t be a wise use of the Town’s resources, particularly coming out of the COVID-19 pandemic and when land purchases should be focused on areas that can be used for housing.
“In my mind, and only in mine, any need to require lands at this time is to be able to build affordable housing on it. These lands would never be appropriate from a topography and geologic perspective in my lifetime, I think, nor does it really meet any of our goals as laid out in the strategic plan,” she said.
Chris Ollenberger, director, strategy and development for TSMVPL, said they were happy to move forward with the rezoning.
“All TSMV ever sought on the Staircase Lands since 2019 was a simple correction of the current land use bylaw that as approved either required a redesignation of the natural park district area inside the Staircase Lands parcel to future development district to match the majority of the Staircase Lands or proper acquisition by the Town at market value via applicable statutes,” he said.
"As adjudicated by Justice Glen Poelman, Section 644 of [the MGA] states that if land is designated for use or intended use as a municipal park and the municipality does not own the land, the municipality must purchase it or designate it for another use. We are glad to have resolution on this issue and to move on from it.”
In a July 27 court order, the former Court of Queen’s Bench ordered the Town to purchase or redesignate the upper triangle land to future development district or purchase the lands.
The land has been natural park district since Canmore’s 1999 land use bylaw was adopted, but a justice found the Town’s 2020 land use bylaw adoption allowed for TSMVPL to have the Town redesignate or buy it.
“Canmore was obligated to undertake the remedial steps of purchasing or redesignating the land within six months of the effective date of the [2020 land use] bylaw,” Justice Glen Poelman wrote in the decision.
The Town attempted to argue the two-year limitation period to bring forward the case began in Oct. 2013 when TSMVPL bought the lands, but Poelman decided it was when a new land use bylaw was passed.
The Municipal Government Act has sections that outline the expropriation process, which is also laid out in the Expropriation Act. A notice of intention to expropriate is filed to the landowner, who is then eligible to make a notice of objection.
A quasi-judicial review begins and if the two sides are unable to come to an understanding, the Land and Property Rights Tribunal can determine any disputed costs.
A staff report noted expropriation costs would have been “very costly” if the two sides didn’t come to a settlement, with the cost of the land being higher than the Town’s original appraisal.
The staff report noted this would be the least expensive option moving forward.
“If you’re in the process when you may have to pay a lot more than you think you need to get what you want, buyers remorse is very real, especially when it's for an entire community and we need to marshall our resources for lots of other big challenges,” Coun. Jeff Mah said.
A decision by the Supreme Court of Canada in mid-October made it easier for developers and landowners to sue governments that remove reasonable uses of private land.
The case between Annapolis Group Inc. and the Halifax Regional Municipality puts a significant defence on the rights of landowners, which will make it far more difficult for governments to put regulations or pass bylaws that impact a private property owner.
The federal government and four provinces emphasized to the court the need for elected officials to have the ability to regulate land uses on private property that is in the public interest.
The ruling all but puts governments on notice when they attempt to do development freezes, zoning changes or environmental restrictions to sterilize private property. The impact will see governments use compensation if they want to zone land a specific way, and it could see public officials more likely to pass development proposals or risk lawsuits.
Town council also received a public and in camera briefing on the ongoing mandamus application brought by TSMVPL to have the Court of King’s Bench order the tribunal’s decisions on Smith Creek and Three Sisters Village area structure plans move forward.
In a letter to the Town, McLennan Ross LLP – representing the Town in the mandamus application – said the hearing has been adjourned to June 1, 2023. The Town has a deadline of Nov. 30 to provide affidavits, while cross-examination on any affidavits will be finished by Feb. 1.
TSMVPL has a deadline of March 6, 2023, to file its written brief and the Town's is March 20, 2023. TSMVPL can apply to expedite the process and the Town could oppose such an application.
The letter warns the Town that an appeal could take a year or more to be heard, which means it’s “highly likely” TSMVPL’s mandamus application is heard beforehand.
The letter added preparing evidence for the mandamus application is “onerous and needs to begin as soon as possible, regardless of whether TSMV seeks to have the mandamus application expedited.”
The Town staff report said they’re continuing to review the decision prior to the next steps being taken, but if an appeal is filed, it would be limited to the evidence that was discussed during the Land and Property Rights Tribunal (LPRT) hearings.
The staff report emphasized the determinations in any case “will become increasingly narrow, legalistic and less directly connected to Canmore.”
Gavin Fitch, a partner with McLennan Ross, said the Town could seek a stay on the LPRT’s decisions but had not yet done so.
He said if a stay is asked for and TSMVPL opposes it, the court could have the Town file an undertaking for damages. If the Town were to lose the appeal since TSMVPL would’ve been deprived of the benefit of developing the land, it could pay for damages.
TSMVPL would have to prove the damages, but affidavit evidence has stated its monthly costs lost due to the project not moving forward are $217,000.
“To date, the Town has elected not to request a stay of the LPRT decisions from either the LPRT or the Court of Appeal,” the McLennan Ross letter stated. “In the absence of a stay, the LPRT decisions have full legal force and effect.”