CANMORE – A preliminary hearing with a provincial tribunal has the Town of Canmore looking to remove a local development advocacy group in the upcoming appeal against Canmore’s off-site levy bylaw amendment.
The Town’s legal representation argued at a July Land and Property Rights Tribunal (LPRT) hearing that Bow Valley Builders and Developers Association (BOWDA) should be removed from an appeal of the off-site levy bylaw amendment due to it not being an impacted party.
Though the Town indicated it had no concern with the five developers filing an appeal, it noted BOWDA is only a group meant to represent the development sector and not subject to the levy.
“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.
Fitch highlighted BOWDA members who are actual builders and developers that are subject to the off-site levy bylaw make up less than half its membership
“Clearly, BOWDA itself is not subject to pay anything imposed by the off-site levy bylaw. Some, but not even a majority, of its members are subject to off-site levies.
“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.”
Canmore council passed the off-site levy bylaw amendment earlier this year after Town staff and the development community significantly differed on the costs associated with the levy. Council also approved $500,000 in estimated legal costs and expert fees.
Town staff have cautioned council that if the 2020 off-site levy bylaw been amended, it could cost the municipality $1-2 million a year in lost revenue from off-site collections.
Gwendolyn Stewart-Palmer, a partner with Shores Jardine representing the development sector, agreed BOWDA isn’t subject to the levy but the Town has recognized it as a stakeholder and main negotiating partner during the off-site levy bylaw amendment process.
She said the Town shouldn’t be able to go to BOWDA, ask it to be the main negotiating partner from the development community, and then try to remove it from the appeal.
“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,” she said.
Stewart-Palmer argued BOWDA represents the entire development sector with a unified voice and not just existing developers but also future ones who may build in Canmore and be subject to the off-site levy bylaw amendment.
“Who speaks for those future occupants if it’s not BOWDA? The individual appellants may not own their land in the future. Today they do,” she said. “Today we have a direct interest acknowledged by the Town and BOWDA has a significant role in the long-range voice in speaking for future occupants of land.”
Fitch stressed to the tribunal that municipalities regularly consult with people who are and aren’t impacted by a decision.
“It’s the nature of municipal politics that a lot of people have a lot of opinions of what goes on in a town,” he said. “The Town, and municipalities across the province and probably all provinces, will consult with lots of people who may or may not be actually affected.”
In an email exhibit, Stewart-Palmer showed the Town reached out to BOWDA on June 1, 2023, to assemble its off-site levy committee for an update to the bylaw. She further showed a public agenda from council’s Feb. 13, 2024, meeting where the Town stated “primary consultation is with [BOWDA] as the local industry representatives.”
“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.
“That makes no sense to us and we would urge the board to reject that interpretation.”
Fitch, however, said more context was needed on who began consultation since the 2024 off-site levy bylaw amendment updated the 2020 bylaw.
He said “it clearly made sense for the Town to reach out to BOWDA and say ‘we’re updating the bylaw. Would you like to sit down?’ The question of who approached who first actually goes back to 2020 and it may even go back before that. … That email is in the context it’s simply an amendment to the 2020 OSL bylaw.”
The only other developer the Town consulted for the off-site levy bylaw amendment was Three Sisters Mountain Village Properties Limited (TSMVPL) on unit counts for remaining undeveloped lands. In its ruling on the Smith Creek and Three Sisters Village area structure plans last year, the Court of Appeal upheld the LPRT’s 2022 decisions and part of those were the Town using wrong unit count totals.
A Freedom of Information and Protection of Privacy request made by the Outlook showed disagreements on unit counts had been a point of contention for several years between the Town and TSMV.
The Municipal Government Act and off-site levy regulations outline consultation has to take place as part of the off-site levy process.
The appeal was filed on May 24 by Spring Creek Mountain Village, TSMVPL, Stone Creek Resorts, Altitude Developments Limited (Logel Homes), BOWDA and SC3 Limited Partnership (Devonian Properties).
In its appeal, the development community 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 LPRT hearing is scheduled to take place in October.
The three-member tribunal panel will release a written decision on whether BOWDA will remain an appellant, but no timeline was set.
