CANMORE – Proposed amendments during second reading and timelines and phasing for commercial and residential development took a pivotal role in the Land and Property Rights Tribunal between Three Sisters Mountain Properties Limited and the Town of Canmore.
The hearing shifted from the Smith Creek area structure plan (ASP) to the Three Sisters Village ASP, as Three Sisters Mountain Properties Limited (TSMVPL) argued its consistency met the requirement of the Natural Resources Conservation Board (NRCB) 1992 decision and the Town had made an error in voting down the plan.
Of key importance for both sides was the phasing of the development, specifically the Town of Canmore wanting commercial first and TSMVPL wanting residential to aid in the expenses of developing commercial.
Chris Ollenberger, the director of strategy and development for TSMVPL, told the tribunal during his rebuttal testimony that the amount of work that went into the ASP showed a comprehensive plan forward.
He also said the phasing considered “a lot of technical aspects and over thousands of pages of reports went into developing the phasing plan.”
“The amount of work and homework we’ve put into that set of plans was enormous, probably the most amount of work I’ve ever seen in 20 years of development for an area structure plan,” Ollenberger said. “I would not say it’s typical for a tab of $11.5 million. It’s extensive. It’s probably the most heavily studied area structure plan in all the iterations that I would be aware of for a municipality in Alberta.”
In giving testimony, Lauren Miller, the Town of Canmore’s manager of planning and development, said the Town’s planning department and TSMVPL were unable to agree on the phasing aspect when developing the plan, and ultimately left it in council’s hands to decide what was best.
A staff report presented the phasing as proposed by TSMVPL, but it was significantly altered by council with 22 amendments during second reading.
“If we could get the footprint of the 2004 (Resort Centre) ASP, but some of the good amendments around affordable housing and phasing that we were able to achieve as part of this ASP, it could be closer to something council would support because the main concern was the scale, how big it was and not disputing the desire or need for commercial development or affordable housing, but how much of that.”
Miller said the plan submitted by TSMVPL “didn’t feel like the NRCB decision was speaking to this proportion of residential development” and “it doesn’t meet the Town’s needs in a 2022 context”.
The amendments led to TSMVPL requesting a workshop with Town staff, which took place May 14, 2021. Miller said the catalyst of the meeting was phasing and the two parties attempted to work on certain aspects of council’s amendments, but they fell short of being able to agree.
Ollenberger told the tribunal TSMVPL examined the amendments, but wasn’t convinced it was possible to make everything work.
“The scale and scope of amendments was almost rewriting the entire plan. It’s hard to say the amended plan works because as the Town said they don’t know. They didn’t provide any studies," he said. "Do we spend $5 million to prove it won’t work when we spent $11.5 million on one that does? There’s not a lot of payoff there. We want to stick with the plan we’re comfortable with, that’s aligned with the NRCB decision, aligned with our vision.”
Ollenberger also said the amendments lacked the professional level of input that the Village ASP worked to achieve over several years of work.
“If development was that easy, everybody would do it and you would only need $30 in photocopiers to do it. It actually took $11.5 million and several years of study," he said. "It would also be contingent on what are the other amendments, there’s a long list of concerns that council only gave administration a small box to play in. It wasn’t an open free-for-all to bring up all of your concerns.”
Ollenberger called the Village ASP a “base camp” that would provide visitors recreation and resort amenities, but also a location people could stay to explore areas such as neighbouring Banff National Park and Kananaskis Country.
He noted tourism was a “strong theme” throughout the NRCB decision and that it would provide a significant tax base for Town of Canmore coffers due to the commercial zoning.
The Village centre would serve as the “heart of the project”, he said, with hotels and residential units around it.
And while the Town of Canmore requested a focus on building commercial develoment first, Ollenberger said residential is required to help fund a project’s development and provide customers for commercial businesses.
He highlighted there needs to be a level of “rooftops before retail”, adding that without it, a commercial area would be on an “island” or “oasis” without a residential customer base.
“To build development, you need finance. No major hotel is going to say plunk me in the middle of nowhere,” he said, adding a “sea of hotel rooms” was also unlikely to work, with commercial properties first wanting to have a base to draw from.
Jessica Karpat, principal planner for QuantumPlace Developments, said the commercial aspect of the Village ASP would also see it brought on as quickly as possible.
However, she said resort destinations such as Blue Mountain in Ontario, Whistler in British Columbia and Mont-Tremblant in Quebec all started with residential, which helped fund the commercial development.
“You can’t support development without some critical mass,” she said. “If you look at any of the resorts … it would’ve undergone the residential phases at the early residential stages first and then they created that village area that was one of the later phases of development.
“These are the fundamentals of how these developments get built.”
Throughout cross-examination of Karpat, the Town’s lawyer Kelsey Becker Brooks hammered at the council amendment made during second reading that swapped the tourist accommodation designation with visitor accommodation.
“The motion that council, and was unanimous, was to replace tourist home with visitor accommodation. That was council’s express decision.”
Miller said tourist homes were considered a residential use from the Town's perspective, but that TSMVPL held a different viewpoint.
While the designation brings in a commercial tax base, Miller said it was challenging to enforce whether they were being used as tourist or residential homes.
Ollenberger said the Village ASP was better than the 2004 Resort Centre ASP, largely because it was 10 per cent of housing for Canmore Community Housing’s inventory compared to the 0.33 hectares (0.88 acres) in the 2004 plan.
“At a high level, the 2020 Village area structure plan is a notably and materially better deal for the Town … which results in many more units than would’ve occurred in 2004 Resort Centre area structure plan," he said.
The Town of Canmore's senior planner, Alaric Fish, took issue with that in his testimony, saying: “I don’t understand how they arrived at that conclusion” in reference to there being more commercial in the Village ASP and that tourist homes were “pure residential”.
He said the Town understood residential would be needed to help build commercial areas, but that in TSMVPL lands they’ve seen almost only residential development.
“While we want to see residential and commercial and we understand the need for them to go hand and hand, but they’re not going hand and hand. The residential is dramatical outpacing the commercial development," said Fish.
In rebuttal evidence, Ollenberger said while commercial and residential go lockstep with one another, it’s not meant to be a one-to-one ratio.
“You don’t build one house and one retail store. … You actually need a number of roofs to provide enough customer base for one retail. … You don’t build a grocery store with five houses next to it. You actually need enough rooftops to provide viability for the scale of commercial," he said.
Ollenberger stressed the Gateway commercial property has been going through stages with the Town for the last two years, adding the commercial needs assessment states it won’t be until 2031 that it reaches the residential capacity needed to sustain the Gateway.
In his testimony, Fish said a major sticking point with the Town was the scale of the development and concern about the “impacts on the broader community”.
He said the Town understood development would eventually happen, but the NRCB decision also gave the community benefits such as recreation and a larger commercial tax base.
“We’re keen to see these realized at some point. … We haven’t seen the recreation amenities to the degree the NRCB anticipated them. As long as we get the recreation amenities that are proposed in the ASP, I think it’s a great possibility, we just have to make sure they’re fully realized as proposed.”
Fish highlighted the limited land supply available for development in Canmore and the need to get anything constructed on the remaining land right.
“I do worry about the long-term future of Canmore. … We’re surrounded by provincial parks," he said. "There is no way we can continue to grow in an unlimited fashion, so when we bump up against the edge of our development potential there are going to be even greater challenges for the development pressures Canmore is going to be under.”
The defeat of the two ASPs has led to litigation in recent months.
TSMVPL filed a civil lawsuit late in 2021 seeking $161 million from the Town, while Thunderstone Quarries also launched a civil lawsuit against the Town for $63.5 million.
TSMVPL has also filed judicial review on both ASPs, but there’s no timeline for either to be heard.
None of the legal claims have been tested in court.
The Tribunal will decide on both hearings after the conclusion of the Three Sisters Village hearing. While a Section 619 appeal directs a decision be made within 30 days, both sides agreed to allow the tribunal more time if needed.
Either side can appeal the final decision. The hearing on the Smith Creek ASP wrapped up March 9.
