Parks Canada has been given permission to appeal the Town of Banff’s planning decisions that make a lawyer’s officer in a public service district a permanent use.
The federal agency appeared in front court of appeal Justice Marina Paperny for legal permission to put an appeal of the decisions before the court.
Legal counsel for the attorney general Angela Fritze argued the Development Appeal Board of Banff erred in law by interpreting the Land Use Bylaw in a way that was inconsistent or contrary to the 2010 Banff National Park Management Plan.
“If the Town of Banff bylaws are not read in conference with the National Park plan the effect will be an erosion of the public service district by allowing commercial uses in it,” Fritze said adding the board failed to consider that plan, the broader purpose of the National Parks Act and the municipality’s incorporation agreement. “All bylaws must conform with that legislative hierarchy.”
Paperny agreed with the legal argument and that it has a reasonable chance of success at appeal.
However, she did not feel Parks Canada’s other grounds of appeal on procedural fairness or that the board failed to give sufficient reasons for its decision earlier this year were satisfactory.
Fritze argued the fact that several Parks Canada employees recused themselves from the board due to a perceived conflict of interest meant the attorney general no longer had representation on the board as was set out in the incorporation agreement. A further request to council to name alternates was also denied.
“I am satisfied that the first issue meets the test for the granting of leave in the circumstances,” Paperny wrote in her decision released last Friday (June 8). “I am not satisfied that the procedural fairness issue and the argument of sufficiency of reasons do.
“Accordingly leave to appeal on the first issue is granted but leave to appeal on the second and third grounds is denied.”
It is the second time a planning decision for the lawyer’s office, which is located in a Bow Valley Credit Union owned building on Beaver Street, has been appealed.
In 2008, however, the DAB decision to allow a temporary change of use for the office was not given leave to appeal by the court.
Fritze said at that time the 2010 management plan had not been in place.
“The very fact we have a management plan is a critical factor that changes the facts,” she said.
That document specifically limits uses in the public service district to non-commercial uses of an institutional, government, educational or community service nature that are required to meet the needs of eligible residents.
Counsel for the Bow Valley Credit Union Michael Aasen and Town of Banff lawyer Sheila McNaughton both argued there was no error in law or jurisdiction that would allow for an appeal.
While Parks submitted that a law office is a commercial use and inappropriate in a public service district McNaughton suggested the Land Use Bylaw does not define commercial as a profit making enterprise.
“It is the use and not if it makes money that is regulated by the bylaw,” she said. “Other uses in the district have a commercial nature but fit within the concept of community service nature.”
Aasen added the municipality is currently undergoing a major review of its Land Use Bylaw.
“The bylaw is under review and in fact the public service district as drafted currently may only exist for a short period of time,” he said.
