Development of four acres of land recently rezoned in the Peaks of Grassi subdivision in Canmore has come to a halt after a Court of Queen’s Bench justice granted an interim injunction concerning the development last week.
Justice J. T. McCarthy granted an interim injunction into the rezoning bylaw approved by council in January until full legal arguments for an injunction pending judicial review can be heard.
What that means is on June 21, Peaks of Grassi resident and lawyer Mark Gruman will argue that all processes toward development of the lands be stopped until a judicial review he applied for regarding bylaw approval can be heard in October.
That judicial review sets out a legal challenge to council’s approval of the rezoning of the land from urban reserve to residential.
While subdivision was approved in March, the interim injunction stays all proceedings, according to Michael Fark, manager of municipal infrastructure for the municipality.
“On March 31, there was another court proceeding as a result of the subdivision approval,” Fark said. “At that court hearing the court did grant an interim injunction, effectively staying the effect of the bylaw.
“In this case, it is simply that the bylaw does not have any effect at this time until further court arguments are heard.”
The next court date for the argument for an injunction until October will be held June 21 in Calgary.
In October, a Queen’s Bench justice will hear the merits of the application made by Gruman and that of the municipality, represented by Michael Aasen with McLellan Ross.
As for legal costs to the municipality the legal challenge could add up to, Fark said there are a number of factors that are still to be determined and an estimate is not available.
The lands are owned by three Peaks residents – Lawrence Hill, Pierre Doyon and Dan Madlung. They acquired the four acres from Three Sisters Mountain Village, which approached a number of local developers with the land for sale two years ago.
While the interim injunction stalls the development process for the landowners, as a matter between two other parties they declined to comment.
The owners previously applied for rezoning in 2015 and were denied by council – the proposed bylaw included two perpetually affordable housing units. There was strong opposition to the development in the neighbourhood and throughout the community. There was also broad support for infill developments that provide a net community benefit through Canmore’s own PAH program administered through Canmore Community Housing Corporation.
Opposition included the fact the development application is tied to a 1998 settlement agreement between the Town of Canmore and Three Sisters at that time. The agreement limited the number of units to be developed in the subdivision.
That settlement agreement was the result of a lengthy legal and development dispute between the municipality and the owners of the property at that time that reached the point of Canmore being granted leave to go to the Alberta Court of Appeal.
The agreement represented in writing settlement of a variety of issues, including a residential cap in the development of pods seven and eight – as the Peaks area was known at the time by the Natural Resources Conservation Board.
The 1998 settlement states: “The Town and the developers agree that the gross developable area for pods seven and eight combined shall not exceed 45 acres and that the density of pods seven and eight combined shall not exceed 404 residential units; provided that in the event that the developers donate to the Town, or the Town’s nominee, lands within pods seven or eight for purposes of community housing then the lands donated and any residential units constructed theron shall not be counted when calculating the 45 acres and 404 residential units.”
In its decision to deny the application for rezoning, council said there was not enough community benefit to allow additional housing in the already established neighbourhood given the agreement.
A second application was made to council by the owners in fall for rezoning, however with significant changes. That included inclusion of seven perpetually affordable housing units, seven market affordable housing and secondary suites.
Council voted 5-2 in support of the rezoning earlier this year, although it was also the cause of litigation by residents in the Peaks of Grassi neighbourhood.
The Friends of Peaks of Grassi Inc. filed a legal action against the landowners of the four acres in the already established neighbourhood last September. The legal action, also by Gruman, sought an injunction in the planning process until it is settled, along with a declaration from the current owners they hold the land in trust for the community and sell the land to the plaintiffs for $200,000. It was dropped before council voted on its decision.
“My clients are confident that town council will make a reasoned decision based upon the overwhelming evidence against the application for rezoning in the Peaks of Grassi,” Gruman wrote. “Accordingly, I have been instructed to discontinue the action against Lawrence Hill, et. al. which, if successful, would have prevented the rezoning application from proceeding.”
Friends of Peaks of Grassi Inc., are a separate group from the Peaks of Grassi Community Association.
While different, they do have key positions filled by the same people. A corporate registries search for Friends of Peaks of Grassi found its directors named as Tom Boone, Mark Gruman (also legal counsel for the group), and Ernie Mattern.
Mattern is also listed as vice-president of the Peaks of Grassi Community Association.
