Parks Canada has won a long-running court battle over what it sees as a Town of Banff attempt to expand its commercial footprint by allowing a lawyer’s office on lands zoned for public service.
On Wednesday (April 17), the Alberta Court of Appeal upheld Parks Canada’s appeal against the Town of Banff’s Development Appeal Board and quashed a permanent development permit for the Beaver Street lawyer’s office.
The decision means Byron and Co. law firm must close its doors by May 2 when the original, temporary permit expires. A call to the lawyer’s office, however, reveals the listed phone number is no longer in use.
“The Development Appeal Board erred in upholding this permit,” stated Justices Frans Slatter, Patricia Rowbotham and Barbara Lea Veldhuis in their written judgment.
“The commercial use proposed is inconsistent with the management plan, something not permitted by article 5.15 of the Incorporation Agreement.”
The disagreement began in 2007 when the Municipal Planning Commission allowed the lawyer’s office to open on a temporary basis in a building owned by Bow Valley Credit Union at 221 Beaver St., which is zoned PS (public service) lands.
Banff’s Development Appeal Board found the proposed use as a law office fell within the discretionary category of “professional, financial, health and office services.”
Parks Canada lost initial attempts to prevent that from happening at both the DAB and Alberta Court of Appeal level, but decided to fight it again when the law firm was granted a permanent permit in 2011.
The federal agency had argued the commercial districts are reserved for commercial businesses, while PS lands are reserved for such uses as schools, churches and hospitals, among other uses.
Dave McDonough, superintendent of Banff National Park, said Parks Canada is pleased with the recent court ruling and will continue to work with the Town of Banff on PS issues through the Land Use Bylaw review.
“It provides clarity for both the Town and for Parks as we work together towards a sustainable community,” said McDonough.
“Our focus is on the commercial growth limits and making sure they are respected. We want to have a vibrant, sustainable national park community that’s consistent with the management plan and commercial growth limits.”
Officials with Bow Valley Credit Union – which rents the space to Byron and Co. – say they are disappointed with the court decision, saying they followed proper protocols for approval with the Town of Banff.
“We are concerned that this decision could sterilize the community value of the property,” said Larry Bohn, CEO of the Bow Valley Credit Union.
“We’re concerned with how far reaching this decision may be on other issues in Banff. The decision gives reference to the power of the management plan and that decision could, we believe, affect not only PS lands.”
The Town of Banff argued the law office complied with both the Land Use Bylaw and the park management plan because it is of a “community service nature,” required to meet the needs of eligible residents of the town.
The Town of Banff points out Parks Canada’s position creates some anomalies in the LUB. There are some permitted uses, for example, day care facilities and funeral homes, that might have a commercial element.
Randall McKay, the Town’s planning and development manager, said the court decision calls into question how the Town will deal with other permitted and discretionary uses in PS districts with a commercial element to the business.
McKay said the Town has already started discussions with Parks Canada on a series of amendments to PS districts as part of the LUB review, including a review of the district purpose, more detailed definitions for certain uses and revised development and design regulations.
“We will continue to work closely with Parks Canada on drafting appropriate language for the PS district that reflects the spirit and intent of the decision,” he said.
“In our opinion, it also doesn’t rule out a future amendment to the wording in the Banff National Park of Canada Management Plan to improve the clarity around this issue.”
The 2010 park management plan stipulates PS districts shall be limited to non-commercial uses of an institutional, government, educational or community service nature required to meet needs of eligible residents.
The plan says commercial uses will be limited to commercial districts, except if they are ancillary to the primary PS district uses. Non-conforming uses that existed on PS lands before the 1998 development cap are grandfathered.
Parks Canada argued in court that a law firm does not fit the uses for PS districts. The three justices found the uses would permit, for example, a commercial snack bar in a public recreation facility.
The municipality, on the other hand, maintains that the law firm is acceptable in PS district, arguing the law office is ancillary to a community service because the community requires legal services.
Justices Slatter, Rowbotham and Veldhuis found this argument ignores the requirement in the management plan that PS lands are limited to non-commercial uses.
“The law office is a primary and discrete use, and it is not secondary or ancillary to any other use,” they wrote.
“It is not, for example, like a Legal Aid office in a public correctional facility, which would be ancillary to the primary public use.”
The three justices said it goes without saying that any development application must comply with the LUB, but it must also comply with Parks Canada’s management plan.
“If there are conflicting or overlapping provisions, the application must comply with both,” they wrote. “If the conflicting requirements are irreconcilable, the management plan prevails.”
