CANMORE – The applicant behind a controversial development project in the Peaks of Grassi neighbourhood will have to pay nearly $16,000 in development fees a second time after council unanimously rejected waiving the fees on Tuesday (Aug. 21).
Town administration recommended council waive the fees because the applicant, who has indicated they intend to apply again to build the project, paid the development fees the first time around.
Michael Fark, general manager of infrastructure, said administration’s recommendation was primarily based on the fact the developer followed all requirements to build the development the first time, but, since the rezoning bylaw approved by council in 2016 to build the development was quashed by Justice M. David Gates, that the developer shouldn’t be on the hook to pay again.
During his presentation, Fark reminded council that on July 3 Justice Gates quashed the rezoning bylaw for the infill project because council breached its own rules of procedural fairness.
In his decision, Gates deemed the rezoning bylaw invalid because an environmental impact statement (EIS) and third party review, required by Canmore’s Municipal Development Plan (MDP) at the time, was not completed as part of the application.
In his decision, Gates determined that while council enjoys a significant degree of procedural autonomy, it is not free to ignore its own bylaw.
“At the time that the original application for the Peaks of Grassi land use was brought forward in 2014, administration at that time looked at the existing policy set and they determined, in their opinion, an EIS was not required by the intent of the MDP,” said Fark.
“Their determination was based on the fact that this was a small parcel of environmental reserve (ER) that was designated as ER due to its steep grade and rocky outcrop and not because of any other environmentally sensitive component; so at that time they felt that they had discretion to propose not having the requirement for the EIS.”
Administration at the time brought that to the attention of council, which ultimately approved the rezoning bylaw to allow the development to move forward.
“Council was aware of the fact that administration was recommending that no EIS be required and it was on that basis that Justice Gates determined that the bylaw that was passed by council eventually to rezone the land needed to be quashed,” said Fark.
“Essentially, the ruling was that if you include in a statutory document and impose upon yourself a requirement to do something, then council does not have the discretion not to do that legal requirement.”
Since the decision, Fark said administration has conducted an internal review and the applicants have indicated they would like to move forward with a new application that would essentially be the same development originally approved by council.
One significant difference this time around is that the applicant has agreed to conduct an EIS and the municipality will pay for third party review of it, despite the fact the Municipal Development Plan no longer requires an EIS for the three parcels of land along Lawrence Grassi Ridge.
“Out of an abundance of caution and to address concerns of the residents of that neighbourhood, the applicant has agreed to move forward with an EIS and the Town will move forward with a third party review of that EIS,” said Fark.
Despite the recommendation from administration to waive the fees, council voted 7-0 against the motion.
Mayor John Borrowman said he appreciated the rationale from administration to waive the fees, but said there will still be a lot of work that needs to be done.
“I appreciate the fact that the developer has already paid quite a bit in the way of fees to move this project forward not once, but twice ... but the reality is there is going to be a great deal of work on this file from the planning department, with three readings, a public hearing and all that goes on around that certain application,” said Borrowman.
He also cited the proposed cost to the municipality to complete a third party review of the EIS, which will be in the ballpark of $30,000 to $40,000.
