tCANMORE – Developers are one step closer to heading to a provincial appeals tribunal over a municipal bylaw that outlines close to $300 million in future infrastructure needs.
Bow Valley Builders and Developers Association's (BOWDA) board has unanimously voted to support proceeding with an appeal of the Town of Canmore’s off-site levy bylaw amendment that had been unanimously passed by council in March.
In the letter to members, BOWDA's executive director Ian O’Donnell and chair Brian Talbot state the board felt the bylaw amendment failed to meet both provincial legislation in the Municipal Government Act (MGA) and regulation.
“It is important to note that the purpose and intent of the regulations around off-site levies is intended to ensure there is fairness and transparency with respect to the benefits and the costs of infrastructure for both existing property taxpayers, and the residents and businesses to come,” stated BOWDA’s letter to its members. “BOWDA remains concerned that the off-site levy bylaw, as passed, allocates costs and benefits in a manner that is not fair or substantiated in accordance with required legislation.
“BOWDA remains steadfast that the off-site levy bylaw as passed is not fully compliant with applicable legislation.”
Town staff, however, have been resolute that the bylaw amendment meets provincial legislation and regulations. At March council meetings, Town staff noted a compliance check had been made with the MGA and the Town had also received outside legal advice.
Canmore Mayor Sean Krausert said the Town has an important role in ensuring “a fair distribution of costs of growth between developers and our resident ratepayers.”
He noted the Town remains committed to meeting with the development community, pointed to a significant increase across the board for nearly everything with factors such as inflation and material costs.
“This is the reality of the day and the reality of what it is to support growth and the cost for doing so,” he said. “It’s very important growth pay for growth and our resident ratepayers only pay for that which is an additional benefit to them that would be reasonably applied based on Town policies.”
The letter from O’Donnell and Talbot noted BOWDA’s board believed the methodology used by the Town doesn’t meet provincial legislation and the associated “increases are not reasonable and have not been substantiated in accordance with the governing regulations.”
“The allocation does not appear to properly reflect the benefitting area; precedent court cases support this perspective,” BOWDA’s letter states. “This layering of cost will have direct impacts to affordability, including existing housing stock, housing supply, and costs of living across Canmore.”
BOWDA has previously stated it agrees with the Town’s methodology for allocation of costs based on determining service factor demands, but not allocation of costs based on benefit. The development advocacy group has argued the bylaw doesn’t attribute the benefit to when new infrastructure improves existing developments.
The bylaw amendment forecasts $273.8 million in future infrastructure needs that come with associated development in the community.
In a comparison between the 2021 off-site levy and the recently passed amended bylaw, BOWDA outlined an average off-site levy increase of 104 per cent across Canmore and up to 532 per cent in some areas.
Among the highest increases are Stewart Creek, Smith Creek and The Gateway; Spring Creek Mountain Village; Three Sisters Village; Palliser and Eagle Terrace and Cougar Creek.
“Ultimately, both existing and future ratepayers need to be concerned over these costs,” states BOWDA’s letter. “BOWDA and Canmore residents need to encourage the Town of Canmore to review these multi-million-dollar expenditures and to ensure that projects match up to Canmore residents’ priorities with costs allocated in a reasonable and responsible way.”
BOWDA members and Town staff met for more than six hours March 26. The two sides agreed to continue discussing issues, but an appeal process would take place at the same time to meet provincial timelines.
BOWDA’s letter added the group has been in talks with BILD Alberta, a provincial advocacy group for developers, which has aided in other appeals and settlements.
Krausert said the Town remains committed to continuing talks with area developers to possibly avoid an appeal hearing at the LPRT.
“At every interaction, the Town indicated that they would be pleased to continue talking if BOWDA sends the information of particular items they would like to discuss or had concerns about,” he said.
“I think it’s healthy the talks are still ongoing. If an agreement can be reached on terms without going to the LPRT, I think that works best for everyone. That said, I think that some aspect of the difference is a philosophical difference that may not be able to be reconciled and so we may need the clarity from the LPRT to ensure that we are all operating on the same page going forward.”
He said the Town is waiting for information from the development community about specific concerns and a meeting will take place in the coming weeks.
“If there are any errors identified, the Town is, of course, extremely willing to correct any errors,” said Krausert. “If there are good rationale for changes to the off-site levy, the Town is very open to considering those.”
Negotiations between the Town and area developers began in mid-2022 when the Utility Master Plan was undergoing an update. The plan, which has traditionally been adopted by council but was first provided as information and eventually approved for planning purposes, is the guiding document for infrastructure for the next 25 years in the municipality.
Before council passed the bylaw amendment in March, BOWDA had asked for a 30 to 60 day postponement to work out differences between the Town and area developers.
Town staff informed BOWDA last December consultation on the bylaw amendment was ending and council declined to direct municipal staff to re-enter talks, choosing to approve the bylaw amendment.
The relationship between the Town and area developers has been plagued with growing contention for several years.
After rejecting the Smith Creek and Three Sisters Village area structure plans (ASP), Three Sisters Mountain Village Properties Limited took the Town to the LPRT. The tribunal ordered the two plans to move forward since council was legally required to approve them – and the Court of Appeal upheld the decision.
Permitting timelines has been a significant issue for several years, with area developers critical of the slow response times and outside alignment with provincial legislation requirements.
The Town has added efficiencies in software, updated bylaws and standard operating procedures and online submissions for permits to increase service. Additional positions such as a temporary permit clerk and a senior planning position to work on the downtown area redevelopment plan and Palliser Trail ASP were also established to assist with workflow.
Krausert said he felt the relationship between the Town and area developers was taking steps forward, but it does take time.
“I do believe that the lines of communication are wide open and that there are very good signs we are developing a stronger working relationship,” he said.
Earlier this year, both federal housing minister Sean Fraser and provincial housing minister Jason Nixon were critical of Canmore. When specifically asked about Canmore’s Housing Accelerator Fund application, Fraser said it and other municipalities should ensure their applications “are among the very most ambitious and certainly more ambitious than their neighbours.”
Nixon stressed municipalities needed to approve projects if they wanted to see provincial funding since the government wasn’t “interested in seeing multi-million housing projects being blocked by a municipal government going forward.”
Canmore was ultimately denied for the federal fund, but Krausert said after the rejection the program wasn’t likely to fit Canmore’s needs due to additional density putting a strain on Canmore’s existing infrastructure. Among the program’s requirements were for the end of exclusionary zoning and improvements to permitting timelines.
Krausert said he met with Municipal Affairs Minister Ric McIver Monday (April 8) in Edmonton, which had McIver say in the legislature he felt Canmore had “legitimately good plans on creating some affordable housing.” Krausert said he hopes to soon have a meeting with Nixon.
Heather Jenkins, the press secretary for the Ministry of Municipal Affairs, said the province “encourage municipalities and developers to work together to best meet local housing needs.”
An off-site levy bylaw can be appealed within 90 days of it being passed. If filed, it would go to the LPRT, but discussions on a settlement can still occur. If it goes to the tribunal, it could be dismissed but if successful, the bylaw could be fully or partially rescinded.
There are six grounds for an appeal such as if it’s unlikely to help future land occupants that are subject to the levy, the area that would benefit from the levy wasn’t determined with regulations outlined in the MGA and the levy isn’t consistent with regulations stated in the MGA.
If an appeal takes place, the provincial Off-Site Levies Regulation allows for a municipality to impose and collect the levy during the process. However, money collected would go into a separate account for each type of facility and not be used until the appeal has been addressed.
