Peaks of Grassi homeowner Mark Gruman has filed another judicial appeal in the ongoing saga of a council-approved bylaw to rezone private property in that neighbourhood.
This time, Gruman is appealing the decision of Justice B.L. Rawlins in her ruling on an injunction into the proposed development on Lawrence Grassi Ridge and across the street from the Calgary lawyer’s Canmore home.
Rawlins was tasked with determining whether an injunction into the development process should be granted while Gruman awaits a judicial review of the bylaw approval scheduled for Jan. 4, 2017.
In her decision to grant the injunction, the judge dismissed all but one argument put forward by Gruman and his legal counsel, James Laycraft, during a hearing in July.
That meant that in the judicial review, the appellant would only be able to argue a procedural bylaw issue and not the main arguments put forward in the legal challenge to the rezoning bylaw.
As a result, an appeal of that decision has been filed and Town of Canmore general manager of municipal infrastructure Michael Fark said another appeal hearing would have to be scheduled to hear the legal challenge.
The potential, said Fark, is that this additional appeal process could delay the judicial review that has been set for the beginning of the new year.
“There is an official process,” Fark said about the appeal. “Right now, we may be looking at an appeal being heard in November, or potentially December.”
Fark confirmed the municipality has spent over $30,000 so far on legal fees related to this one court case and it is the intention of the Town of Canmore to seek full costs from the appellants once the matter is concluded.
The arguments dismissed by Justice Rawlins include that the rezoning violated the Water Act; council was biased or created the perception of bias because a relative of a council member was counsel for the developer; the town failed to comply with an undertaking in the NRCB decision of 1992 to not build on slopes of 25 degrees or greater or failed to undertake geotechnical screening; the town failed to consider whether rezoning was premature and that the decision breached natural justice, fairness and the Town’s procedural bylaw.
It was only the procedural bylaw argument that held any weight with the judge to allow the review to move ahead.
“While I think Mr. Gruman’s interpretation of the Procedural Bylaw is strained … I cannot go so far as to conclude that the argument is frivolous and vexatious,” Rawlins wrote in her decision. “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.
“Moreover, notwithstanding the rigorous standard, I find that none of Mr. Gruman’s arguments respecting further screening, the NRCB, the Water Act and the alleged bias of one of the councillors raises a triable issue.”
The lands in question are owned by three Peaks residents – Lawrence Hill, Pierre Doyon and Dan Madlung. They acquired the four acres from Three Sisters Mountain Village, which approached a number of local developers with the land for sale two years ago.
The owners previously applied for rezoning in 2015 and were denied by council – the proposed bylaw included two perpetually affordable housing units. There was strong opposition to the development in the neighbourhood at a required public hearing held for the rezoning. There was, however, also broad support for infill developments that provide a net community benefit through Canmore’s own perpetually affordable housing program administered through Canmore Community Housing Corporation.
A second application was made to council by the owners last fall for rezoning, however, with significant changes. That included inclusion of seven perpetually affordable housing units; seven market affordable housing and secondary suites.
Council voted 5-2 in support of the rezoning earlier this year, although it was also the cause of litigation by residents in the Peaks of Grassi neighbourhood and Gruman.
The Friends of Peaks of Grassi Inc. filed a legal action against the landowners of the four acres in the already established neighbourhood last September. The legal action, which was later dropped, sought a declaration from the current owners they hold the land in trust for the community and sell the land to the plaintiffs for $200,000.
Friends of Peaks of Grassi Inc. are a group separate from the Peaks of Grassi Community Association.
