Banff’s development appeal board is sending a strong message to Parks Canada to provide greater clarity in Banff National Park’s management plan when it comes to commercial development in commercial land use districts.
Likewise, The Town of Banff wants to meet with Parks Canada to get a thorough understanding around an ambiguous clause, which states development in commercial downtown districts will not include new commercial development above the second storey.
In its 25-page decision that vetoed the Homestead Inn’s current development plans, the DAB said many of the issues in the appeal stemmed from that single ambiguous paragraph in 2010 management plan, which trumps all other planning documents.
“The board observes that the Banff National Park Management Plan is written like a strategic document, yet courts have held it to have the effect of a statutory instrument,” wrote DAB chairwoman Barbara McNeil. “The board finds this disconcerting.”
One of the ambiguities in the clause is the reference to “commercial downtown districts.”
Within the Town of Banff’s land use bylaw, there is only one commercial downtown district, referred to as the CD district. However, the park management plan uses the plural form of district.
The commercial accommodation (CA) district abuts the CD district in some areas of the downtown core, but also stretches all the way to the east end of Banff Avenue.
The DAB concluded the term “commercial downtown districts” is not intended to include the CA district and that it referred exclusively to the CD zone.
“The board does not view that the intent of this language was to affect any new hotel development above the second storey in the CA district,” wrote the board in its June 24 decision.
“With the CD district, it is the board’s view that this clause is only intended to prevent any new commercial development – it was not intended to eliminate the possibility of residential or other development above the second storey.”
The concept of height limitations in Banff’s commercial areas was first introduced in the 2004 park management plan, introducing a limit of 2.5 storeys in the CD district and three storeys in the CA district.
The height limitation was replaced with the current clause in the 2010 management plan.
In addition, there has also been much debate around what “new” commercial development in that clause means, including amongst the eight-member DAB board.
The Town of Banff, the owners of the Homestead Inn and a minority number of DAB members argued for a very narrow interpretation of “new,” meaning development that has never existed before in any form.
That interpretation means property owners are only restricted from development above the second storey where no development has ever existed before, but if anything existed before above the second storey, no matter how large or small, development should be permitted.
The Town of Banff has stated other developments have been approved in the CD district, and to apply a more restrictive definition would effectively sterilize existing three storey buildings.
Those dissenting DAB board members believed the Homestead’s development is not new, that it is a redevelopment with an intensification of use, and therefore, height restrictions should be governed by Banff’s land use bylaw and design guidelines.
They argued this view sits well with another clause in the management plan that refers to the 1998 commercial development, at which point only an additional 350,000 square feet of commercial development was allowed on top of what already existed at that time.
Arctos & Bird, one of the appellants, argued for a wider interpretation of “new,” covering situations where a building is demolished and another building is built in its place. When a building is removed, the new building cannot exceed two storeys.
“It is the view of the board that ‘new’ should be interpreted widely,” the board wrote in its decision.
Robert Earl, Banff’s town manager, said the Town of Banff would immediately seek clarification from Parks Canada on the ambiguous clause, either by way of clear direction or an amendment to the management plan.
He said the park management plan has been historically treated as a strategic document, but in recent times it has been treated more regulatory and legislatively.
“Banff is a one industry town and redevelopment is part of moving forward,” he said. “The ambiguity might create nervousness with building owners with respect to reinvestment so we need clarity.”
Earl said the municipality needs a better understanding on what geography Parks Canada is referring to in its plural definition of downtown commercial districts.
“For example, if Mount Royal came forward with a redevelopment plan for the hotel, to rekindle itself, it would have been my belief that commercial above the second storey would have been an allowable use,” he said.
“There is a commercial cap in place, and if the notion was not to have commercial above the second storey, that would be further shrinking of the cap. It doesn’t make sense that Parks Canada intended to further shrink the commercial cap.”
Parks Canada had no comment.
“In regards to the Town of Banff DAB decision, Parks Canada is currently reviewing the document and has no comments at this time,” said Parks Canada spokesperson Christina Tricomi in an emailed statement.
