Parks Canada’s appeal against a decision to permanently allow a law office in a public service land use district has been denied.
Banff’s Development Appeal Board heard the appeal on Wednesday (March 7) and chair Barbara McNeil said the original decision of the planning commission conforms with both the Land Use Bylaw and the 2010 Banff National Park Management Plan.
“We considered the hierarchy of guiding documents within the Town of Banff and we found the decision of the Municipal Planning Commission conforms with the Land Use Bylaw,” McNeil said, adding within the bylaw, offices are an approved discretionary use and furthermore the specific use conforms with the purpose of the district.
“Within the Land Use Bylaw, offices of lawyers are clearly included in the public service district… and we find use of a law office meets the requirements of providing a community service to eligible residents.”
The difference of opinions stems from the fact the law office is based within public service lands – and not in the Town’s commercially zoned lands where a federally legislated development cap has applied since 1998. In addition, what can be defined as having a community service nature is not clearly defined in the bylaw.
Angela Fritze, lawyer for the Minister of the Environment, argued the law office is a commercial operation and as such should not be approved in the district.
Banff Field Unit Superintendent Pam Veinotte said Parks Canada will review the decision.
“We will review today’s decision with legal counsel and will discuss and determine potential next steps,” she said.
The board’s decision upheld an approval for a proposed change of use from community recreation service to professional, financial, health and office services at 221 Beaver St. The office is leased to a law firm and the building is owned by Bow Valley Credit Union, which made the application for change of use.
It is the second application for the change of use. In 2007, the credit union made a similar application that was approved as temporary. Parks made an unsuccessful appeal of that decision and was also denied leave to take the matter in front of the Court of Appeal.
However, this time around, the planning commission at its November hearing made the change of use permanent.
Fritze argued making the change permanent was inappropriate and undermines the discretionary nature of the district.
She also argued the 2010 approval of the Banff National Park Management Plan provides clarity on land use in the public service district.
Fritze said the board’s decision must conform with changes to that document as set out in the Town’s incorporation agreement.
In particular, section 6.2.2.3 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.
Furthermore, the management plan states: “Commercial uses will be limited to the commercial districts, except as they may be ancillary to the primary public service district uses listed.”
The Land Use Bylaw is entering its third phase of a major review that includes bringing it in line with the management plan as required.
“It is simply a matter of timing,” Fritze said. “The Land Use Bylaw is about to be reviewed and it must be brought into sync with the Banff National Park Management Plan.
“As of right now, these two documents are not in sync and you must reconcile this.”
Town of Banff lawyer Sheila McNaughton argued the documents are in sync and that changes to the management plan do not automatically imply changes to the Town’s bylaw.
“I would urge this provision need not be interpreted as narrowly as Ms. Fritze suggested,” McNaughton said. “If you conclude the provision of legal services is supportive of the community services aspect of provisions in the national parks plan, there is not a conflict between the two documents and it is appropriate for this board to support the decision of the MPC.”
Michael Aasen, counsel for the Bow Valley Credit Union, argued the purpose of the district is to provide community services and a number of uses qualify as such, including offices, medical clinics and educational operations.
The fact that such a community service has a commercial nature, Aasen said, is splitting hairs.
“To seize on the commercial element of a land use is throwing out the baby with the bath water,” he said, adding the Environment Minister is trying to micro-manage Banff. “Does a lawyer’s office provide a community service? The current Land Use Bylaw suggests that it does.”
Aasen added while the management plan may suggest changes to discretionary uses in the district, it is merely desired by the minister, not dictated, and has yet to occur.
As such, he said, the applicant must rely on the legislation in place and that is the current Land Use Bylaw.
