The Town of Banff is investigating if parts of the Land Use Bylaw can legally be stripped out and put into other bylaws and policies that don’t require federal government approval.
The move, in part, relates to concerns that Parks Canada may hold up approval of the bylaw until its battle with the municipality over what it sees as commercial expansion into public service lands is resolved to its satisfaction.
Banff council has asked administration to look at whether certain issues in the LUB – a document that controls all land use and development in the townsite – could legally be regulated by other municipal bylaws and policies.
Prominent local lawyer Eric Harvie raised the issue at a recent public hearing on the amending Land Use Bylaw, suggesting the Town of Banff needs to rethink its entire approach to land use planning.
“The municipality should strip out everything it can legally pull out of the Land Use Bylaw and move those regulations to other bylaws, council policies or development agreements,” he said.
“The first step would be for the municipality to seek legal advice on what is actually legally required to be in the Land Use Bylaw under the Municipal Government Act and under the Incorporation Agreement.”
Mayor Karen Sorensen said she respects that Parks Canada needs to sign off on municipal documents like the community plan and LUB, but added removing some areas could make future potential changes more efficient.
“It does add time and paperwork to getting these things completed, which other municipalities don’t need to deal with, but it is a process set up within the Town of Banff,” she said.
“I think Mr. Harvie’s letter was interesting and it certainly piqued council’s curiosity around whether there are things in the Land Use Bylaw that don’t need to sit in that bylaw, that could be regulated through other means.”
Harvie, who was not representing any one particular property owner or business, said amendments to the LUB have become an extremely cumbersome process solely because of the legislated commercial cap.
“Any proposed changes to the bylaw, even simple and non-contentious changes that are necessary for a functioning municipality to make from time to time, are inevitably tied to resolution of the multitude of issues that arise, and will continue to arise, because of the commercial cap,” he said. “Today’s issue is the public service land use matter.”
The issue Harvie refers to is the ongoing fight between the Town of Banff and Parks Canada over public service land use districts, which was sparked by the municipal planning commission’s approval of a law office on Beaver Street.
Parks argues the move erodes commercial development limits and expands the municipality’s commercial footprint, while the Town says it’s a broader interpretation of what constitutes a community service on public service lands.
The Town plans to examine public service land use districts as part of the next phase of the LUB review later this summer. The review of the bylaw has now been underway for more than two years.
Parks Canada does have final authority over all land use issues in the townsite – and has the power to refuse to sign off on the LUB – but is going the court route instead and is seeking leave to appeal on June 6.
Harvie said he is not advocating the commercial development cap be ignored or defeated, adding he believes the majority of Banff residents believe some form of cap is appropriate for the national park townsite.
But he said the commercial cap -– which was implemented in 1998 amid concerns across the country about development in Banff – was poorly designed from the outset and has flaws that should be corrected.
“In my opinion, the PS land use district issue is solely the result of poor land use planning when the commercial cap was introduced,” Harvie said.
“The PS land use issue is not an isolated matter, rather the list of issues and unforeseen consequences coming to the surface because of the commercial cap is growing and growing.”
Harvie said instead of meaningful discussion, Parks Canada appears intent on enforcement as evidenced by repeated appeals of Municipal Planning Commission and Development Appeal decisions regarding public service districts.
“It is foreseeable their next ‘counter and thrust’ will be to withhold any approval of the Land Use Bylaw until the PS land use issue is resolved to their satisfaction,” he said.
Harvie said he believes any changes to the Land Use Bylaw will take years and years to approve.
“It means anything written in the Land Use Bylaw will now be entrenched for a very long time and amendments will become increasingly difficult, if not impossible, to make,” he said.
“This is an unacceptable situation for a single industry municipality that has to be nimble and responsive to market changes. The commercial sector has repeatedly made one request – that are for certainty – and the current process creates uncertainty.”
Parks Canada did not get back to the Outlook with a comment by press time.