A Court of Queen’s Bench judge has decided that a judicial review into the bylaw approval for a development in the Peaks of Grassi subdivision will proceed.
Justice B. L. Rawlins issued a decision on Friday (Aug. 12) into an application by Peaks resident Mark Gruman to put an injunction in place to prevent development of three lots at the end of Lawrence Grassi Ridge.
Gruman’s lawyer, James Laycraft, presented his strongest argument to Rawlins in July to have a judicial review into a Land Use Bylaw change that rezoned the property from urban reserve to residential earlier this year.
Laycraft’s main argument for the judicial review had to be strong enough to convince Rawlins it met a test to proceed with the hearing in January and not grant a cross-application by Town of Canmore legal council Michael Aesen to have the entire matter dismissed instead.
Canmore’s lawyer argued the application for judicial review by Gruman is “an attempt by a disgruntled citizen to have his opinion take precedence of the decision of an elected government body.
“If this court permits decisions of council to be stayed for months, citizens will use and abuse the judicial process to interfere with the orderly government of municipalities.”
Rawlins granted the injunction, although “with some reluctance,” she wrote in her decision.
She said the decision she was tasked with to make was, by its very nature, a balancing exercise of the legal rights of both sides: Gruman and the Town of Canmore.
“While I appreciate that council may find it frustrating to have its decisions delayed,” Rawlins wrote, “the MGA specifically provides for this level of judicial oversight.”
The 1.62 hectares are owned directly and indirectly through companies owned by Lawrence Hill, Pierre Doyon and Dan Madlung, who are longtime residents of the neighbourhood.
In 2015, the three put forward a rezoning application for the properties that failed to gain support from council. Later the same year, they put forward a second proposal to rezone the property from urban reserve to residential. It proposed 27 units of housing be developed, of which eight were perpetually affordable housing units (PAH).
Rawlins’ written decision set out that while she may find Gruman’s argument tenuous, she could not go so far as to find it frivolous or vexatious.
“Accordingly, I must, with some reluctance, find that Mr. Gruman has met this portion of the tripartite test. I hasten to add that, had the standard been more stringent, I would have arrived at a different conclusion.”
The application by Gruman for judicial review of the bylaw makes multiple legal arguments for why it should be overturned. The strongest was based on procedural fairness, noted Rawlins in her decision.
Council’s procedure bylaw states, in relation to public hearings, that council “shall not discuss or consider any input from the applicant or members of the public regarding a matter under consideration that is received after the adjournment of the public hearing held to hear that matter.”
The public hearing into the bylaw was held on Nov. 24, however, after that hearing Canmore Community Housing Corporation’s board of directors considered the subject when it negotiated an option to purchase agreement. The involvement of CCHC in the process was predicated by the fact that PAH units were being considered as part of the rezoning and CCHC manages the PAH program.
Councillor Joanna McCallum chairs the CCHC board and Mayor John Borrowman also sits on the board. Because of that fact, Laycraft said, both breached the procedural bylaw when they considered an option to purchase PAH from the developer.
“This procedural anomaly, which we say is a clear cut violation of the procedural bylaw, is enough to establish there is a serious issue,” he said.
According to minutes from the meeting, the CCHC board considered the matter at a meeting, however, that Mayor John Borrowman did not attend and voted in a motion that as chair, McCallum abstained from.
Until the judicial review proceeds in January, there is no indication of how their participation, or lack of participation, will affect the legal arguments being considered.
Rawlins noted in her decision that should the judicial review be found to be without merit, the court can also make a determination on costs.
