CANMORE – An upcoming tribunal hearing will determine if a local development advocacy group will be able to participate in an appeal against Canmore’s off-site levy bylaw amendment.
The Town is attempting to have Bow Valley Builders and Development Association (BOWDA) removed from the upcoming October hearing between it and developers at the Land and Property Rights Tribunal (LPRT) on Canmore's off-site levy bylaw amendment. The preliminary hearing to remove BOWDA as an appellant is Thursday morning (July 25).
In a July 10 letter to the LPRT and Shores Jardine LLP, the Town’s legal representative McLennan Ross asked the provincial tribunal to remove BOWDA as an appellant.
The letter argues BOWDA doesn’t have the ability to appeal under provincial off-site levies regulation and “has failed to demonstrate that it is directly affected” by the Town’s off-site levy bylaw amendment.
“Further, given the presence of other appellants who are directly affected by the off-site levy bylaw (the five developers), BOWDA’s participation in the appeal is unnecessary,” stated the letter from McLennan Ross, signed by Gavin Fitch and Marika Cherkawsky.
It stated BOWDA isn’t subjected to off-site levy payment and Section 10(1) of the off-site levy regulation “provides that only persons whose rights are ‘directly affected’ by a bylaw imposing an off-site levy … are entitled to submit a notice of appeal to the LPRT.”
Though it noted that “directly affected” isn’t defined in either the province’s off-site levy regulation of the Municipal Government Act (MGA), the wording is similar to other provincial administrative boards and commissions.
It indicated previous cases to the Court of Appeal have given “guidance to the LPRT to determine whether BOWDA properly has standing.”
“The onus is on the party seeking standing to establish their recognized legal rights may be both directly and adversely affected by the decision,” stated Fitch’s and Cherkawsky’s letter.
“Simply put, BOWDA is not directly affected by the off-site levy bylaw. … BOWDA is not a land developer in the Town and will not be required to pay off-site levies for projects or developments undertaken in the Town. As such, the LPRT’s decision in this appeal does not directly affect BOWDA.”
It further highlights the LPRT ruled against BILD Alberta in 2023 not being able to attain status in four developers’ appeal against the City of Spruce Grove’s off-site levy bylaw.
“It is not appropriate to grant standing to an advocacy organization such as BOWDA when there are other appellants who are directly affected by the off-site levy Bylaw and will be bound by any decision of the LPRT,” stated the McLennan Ross letter, noting the Town took no issue with the five developers to appeal.
In defence, BOWDA’s legal defence from Shores Jardine outlined the development advocacy group should be allowed to appeal since the Town has treated BOWDA as a stakeholder throughout the process and BOWDA’s inclusion not causing delays to legal proceedings.
It also stated the MGA defines stakeholder and the off-site regulations use directly affected that “can only be read in the context of the term stakeholder. BOWDA is a stakeholder and is therefore directly affected,” stated the legal defence.
“Industry groups such as BOWDA provide a means for those who are directly affected, including landowners and builders in the Town, to come together to represent their interest to the municipality,” wrote Gwendolyn Stewart-Palmer.
“Any developer who singularly challenged an off-site levy bylaw is faced with competing against the extensive resources of the municipality for a benefit that will accrue not only to the developer if they are successful but to all persons in the municipality who are or may in the future be subject to payment of the off-site levy.”
Stewart-Palmer highlighted BOWDA can also represent “future occupants of the land” since they are subject to off-site levies.
“If a group such as BOWDA cannot appeal to represent the direct interest of the development industry as a whole in off-site levies that are made in accordance with the requirements of the MGA and Regulations, it is unclear why a specific ground of appeal would relate to “future occupants of the lands”.
The letter emphasized the Town consulted with BOWDA and had them as a representative for the process.
“The Town is required to consult with stakeholders in good faith and provide stakeholders an ability to provide input on an ongoing basis. If the Town’s good faith consultation and opportunity for stakeholders to provide input on an ongoing basis into the off-site levy bylaw was through its consultations with BOWDA, then BOWDA must be directly affected.”
“The appellants submit that the Town cannot have it both ways. If the Town wishes to assert that BOWDA has no standing, it must then accept that it failed to consult as required by the MGA and regulations.”
Stewart-Palmer noted “the Town enjoyed the benefits of primarily consulting with BOWDA as a collective voice rather than engaging individually with multiple and likely disparate developers.”
“BOWDA is not a busybody litigant. BOWDA is the representative group for developers and builders in the Town. The Town has acknowledged this by consulting, essentially exclusively, with BOWDA in respect of the off-site levy bylaw.”
An appeal against Canmore’s off-site levy bylaw amendment was made in June by five area developers and BOWDA.
Spring Creek Mountain Village, Three Sisters Mountain Village Properties Limited (TSMVPL), Stone Creek Resorts, Altitude Developments Limited (Logel Homes), BOWDA and SC3 Limited Partnership (Devonian Properties) are the appellants.
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 Town’s methodology of allocating benefit generally only considers a cost allocation to existing development based on cost of replacing ‘like for like’ the existing infrastructure, less the residual value for the remaining lifecycle of existing infrastructure. The Town’s methodology fails to consider benefits, expected, anticipated or implied by the regulations to the existing development of new, upgraded or expanded infrastructure, including redundancy,” stated the developers’ appeal.
The appeal was highly critical of the Town’s Utility Master Plan due to its lack of consultation with the development community, several changes to the guiding document giving a lack of transparency and costs for certain projects not being clear.
Canmore council passed its off-site levy bylaw amendment in March and subsequently approved $500,000 in estimated legal costs and expert fees at its June meeting.
Town staff have cautioned council that if the 2020 off-site levy bylaw hadn’t received an updated amendment, it could cost the municipality $1-2 million a year in lost revenue from off-site collections.
