CANMORE – A Bow Valley advocacy group for builders and developers will take part in the upcoming legal battle on off-site levies between the Town of Canmore and developers after a ruling by a provincial tribunal.
The Land and Property Rights Tribunal (LPRT) found Bow Valley Builders and Developers Association (BOWDA) is an affected party for an upcoming hearing on Canmore’s off-site levy bylaw amendment.
The panel found as a “highly local” organization that advocates for members in the Bow Valley, it was directly affected by the bylaw amendment.
“In the panel’s view, whether or not an organization meets the threshold to be considered ‘directly affected’ for the purposes of the [off-site levy] regulation is highly fact dependent and cannot be reduced to a statistical exercise,” stated the decision.
“In the present case, BOWDA is highly local … BOWDA is not an association that has members across the province or across the country that advocates for its members’ policy interests on a provincial or national level. Its interests are limited to the Bow Valley.”
The panel said BOWDA doesn’t fall specifically into the category of an organization that pays off-site levies to the municipality; it felt it appropriate to expand what is considered directly affected groups impacted by the levy.
“The panel found that BOWDA is a locally focused organization with a significant proportion of members who either will pay or are likely to pay an off-site levy under the OSL bylaw,” stated the decision. “The LPRT concluded BOWDA is a ‘directly affected’ association with standing to appeal.”
The panel’s decision noted neither the Municipal Government Act or off-site levy regulation defined directly affected, but stated it used an “interpretive approach” in interpreting previous legal decisions, the arguments presented by both sides arguments, the context of those arguments and consultation with BOWDA was enough to make it a directly affected party to appeal.
The 12-page decision reviewed arguments from legal representation from both the Town and BOWDA in determining the outcome.
The three-person tribunal indicated that “whether or not an organization meets the threshold to be considered ‘directly affected’ for the purposes of the off-site levy regulation’ is highly fact dependent and cannot be reduced to a statistical exercise.”
It added the factor of whether a group “has significant and specific ties to and interest in the municipality” must be measured if the businesses involved in the group work and do most of their business in the municipality and if those businesses have to pay an off-site levy.
At the one-day hearing, the Town’s legal representation indicated it had no issue with developers filing an appeal but since BOWDA wasn’t directly impacted by the off-site levy they shouldn’t have standing.
“The position of the Town, is simply, BOWDA as a representative organization that advocates for its member is itself not directly affected by the OSL bylaw,” said Gavin Fitch, a lawyer with McLennan Ross representing the Town, at the July hearing.
Fitch said while BOWDA members are builders and developers, the advocacy group isn’t subject to pay any of the fees associated with Canmore’s off-site levy bylaw amendment.
“The Town submits BOWDA has failed to establish that it has any legal claim right or interest that will be affected by the enactment of the OSL bylaw,” he said at the July hearing.
The developers’ lawyers agreed that BOWDA wasn’t subject to the levy, but outlined it had been the main negotiating partner with the Town. It was also argued BOWDA represented not only current developers, but future ones who would also be subject to the off-site levy.
“The Town has recognized and treated BOWDA as a stakeholder and cannot now take the position that they are not a stakeholder … You can’t have your cake and eat it too if you’ve taken the steps to consult with us and can’t now resile from that to say you’re not affected to appeal,” said Gwendolyn Stewart-Palmer, a partner with Shores Jardine and representing the appellants.
She provided evidence that had Town staff reach out to BOWDA in 2023 to assemble its off-site levy committee and begin talks for the bylaw update.
“It would be, in our submission, absurd to say the Town can rely upon its consultation with BOWDA to fulfill its obligations on consultation under the self-saying regime of off-site levies but then to allow the Town to say ‘oh, that consultation is a recognition of your affected stakeholder status is not so broad to allow you to appeal’,” she said at the July hearing.
Canmore council passed its off-site levy bylaw amendment earlier this year. The Town and developers significantly differed on the costs associated with the levy. Council approved $500,000 in estimated legal costs and expert fees.
Town staff cautioned council if the 2020 off-site levy bylaw wasn’t amended, it could cost the municipality $1-2 million a year in lost revenue from fees associated with the levy.
The appeal was filed on May 24 by Spring Creek Mountain Village, Three Sisters Mountain Village Properties Limited, Stone Creek Resorts, Altitude Developments Limited (Logel Homes), BOWDA and SC3 Limited Partnership (Devonian Properties).
In its appeal, the development community has argued the calculations of costs were inconsistent with provincial regulations, the imposed off-site levies are “unlikely to benefit future occupants of the land who may be subject to the off-site levies” and the principles and criteria of provincial regulation weren’t followed.
The Town and appellants asked the tribunal to provide a written decision. In a previous LPRT case, a tribunal board determined BILD Alberta – a provincial advocacy group for developers – was unable to be an appellant in a hearing between developers and the City of Spruce Grove. However, the tribunal made the decision without a written decision, leaving it unknown for the reasons.
It noted, however, future outcomes could be different if a “provincial or national organization” attempts to seek standing in an appeal of a municipal off-site levy.
The hearing between the Town and developers is scheduled for October.
