The Town of Banff and Parks Canada have known for years now that the population cap for the community has been set at 8,000 people, but as far as how that limit is to be managed by both levels of government is the subject of a legal challenge.
Arctos & Bird owner Peter Poole has officially challenged the population cap as it relates to an approved development permit for redevelopment of the Homesteads Inn and renovation of Melissa’s Misteak restaurant on Lynx Street.
Banff’s Municipal Planning Commission approved the development in December, which was comprised of a 72-unit hotel, two residential units and a renovation for Melissa’s exterior.
Poole appealed the development permit granted by the commission’s board for the Town of Banff, which is still being considered by the community’s development appeal board. That board has adjourned the appeal process to receive additional information from the applicant and property owner – Fuji Starlight Express – which also owns Banff Park Lodge across the street.
The challenge Poole has levelled against the Town of Banff’s planning department is that it has not managed development in relation to the legislated population cap, which is set out in the Banff National Park management plan. But whether or not the appeal board actually has the jurisdiction to hear that particular aspect of Poole’s appeal has yet to be determined.
Despite that jurisdictional issue, Poole’s legal counsel W. Shores filed an application for judicial review in the Court of Queen’s Bench on Dec. 5 on the basis the municipality has not managed the population issue proactively through its development approvals.
The grounds for the judicial review stated the Banff management plan “recognizes the Town of Banff has an impact on surrounding park lands and imposes population limits and development limits, including proactively managing all aspects of development in the Town so as to ensure that permanent population (federal census) will not exceed 8,000 and maintaining limits on additional commercial development.”
Additionally, the judicial review seeks the court to declare the consolidation of the leases for lots 20-24 along Lynx Street invalid or unlawful, or to have it quashed or set aside (the lease of lot 20 was consolidated with the lease for lots 21-24 before the development permit was applied for).
Shores argued that a consolidation of leases should be considered a subdivision and as such requires a subdivision approval from the Town of Banff and Parks Canada before it is undertaken.
Shore’s appeal seeks that regard be made for the subdivision approval process – as set out in the Town of Banff’s incorporation agreement – and that it proactively takes into account the intended population limit.
“The incorporation agreement entrusts the local government function of subdivision approval to the subdivision approving authority of the Town of Banff and prohibits any person from subdividing a parcel, including making a change to the boundary of adjoining parcels (which is the essence of a lease consolidation) without the approval of the subdivision authority,” Shores wrote in his legal submission to the Court of Queen’s Bench.
Arctos & Bird is an adjacent property owner to the Homestead’s site – and Poole submitted at the development appeal board that when his company moved forward with developing Bison Courtyard improving the public realm was considered worthwhile and certain aspects of the final approved project were included to do that – like improvements to the alleyway.
“What would it take to improve the public realm, not just for us, but for all users of the alley,” he asked during the DAB hearing. “In 2003, we did a suite of things … let’s finish the job while we have one remaining big development to be considered. Let’s do it consistent with what the Town of Banff negotiated with us in 2003. What is fair for one is fair for the other.”
While conditions of approval were subject to an appeal by Poole at the development appeal board level, it did not form part of the judicial review application filed in court in December.
The appeal board has yet to set a date for submission of an environmental assessment of the subject property, which is currently under review by Parks Canada. Once that hearing is held, the board is expected to consider all submissions and deliver a decision at a later date.
As for the judicial review, legal counsel for all parties have yet to set a date for the judicial review hearing.
