CANMORE – The residents in the Van Horne area of Canmore may have applied to have a direct control district created in their neighbourhood for a 60-metre setback from the Bow River, but the owner of two vacant lots that would be affected objects to the process entirely.
The Van Horne Direct Control District Land Use Bylaw amendment was in front of council on Nov. 3 for a public hearing and lawyer Churyl Elgard spoke out against the application, which she said illegally targets the property owner under the Municipal Government Act.
Elgard called the validity of the bylaw into question, as it targets a private citizens' property and called on council to abandon the process. She also questioned how the neighbours along Van Horne were made aware initially of the owner Steve Dobler's plans to develop it.
"This is a targeted application and the evidence supports that," she said. "As a rule, private land use applications apply to only the applicant's property. But these applicants are asking council to restrict land they do not own for their benefit."
Elgard said the bylaw unfairly infringes on Dobler's rights and sets out to create an illegal restrictive covenant for 13 and 14 Van Horne. She said by focusing on the setback from the Bow River, it is a red herring and really this application seeks to benefit the owners of 11 and 12 Van Horne with respect to their views.
Canmore, she said, does not through its bylaws allow for viewshed protection. Elgard also pointed to homes along Prospect that have a 30- to 40-metre setback from the river.
Furthermore, she argued that Dobler purchased the lots for $6 million with the current zoning, which is directly related to how they were valued. To adopt the direct control district would effectively restrict its market value, erode market confidence and lead to an appeal on its assessment.
"This is a targeted bylaw that is outside council's jurisdiction and if council needs to consider it further, it needs more information," Elgard said.
While consideration of second and third reading of the bylaw was also on council's agenda for the Nov. 3 meeting, Mayor John Borrowman put forward a successful motion to postpone it.
Senior planner Alaric Fish presented the proposed district, which would affect seven properties along Van Horne – including the two vacant lots.
Fish said the primary purpose of the application was to establish a 60-metre building setback from the Bow River, as a similar setback was in place when the other five parcels were developed in the late 1990s and mid-2000s.
"Overall, the proposed district is very similar to the R1 district that the area is currently zoned, but there is an amendment essentially to establish a 60-metre building setback," Fish said.
While accessory dwelling units are permitted in R1, the proposed district instead had them as discretionary.
He confirmed that a 60-metre setback would not result in the property owner having restrict the size of a dwelling they would be permitted to build. Fish said if approved, the district setback would only restrict where on the lot it could be located.
Greg Birch, speaking on behalf of the other five property owners, said the primary purpose of the proposed change is to ensure the two vacant lots are held to the same development setbacks from the river.
While there is a lot of history around the different Land Use Bylaws (LUB) and Municipal Development Plans (MDP) that have been in place over the years as development in that neighbourhood has proceeded, Birch said it was clear to the current owners that should the vacant lots be developed they would only be required to have a 7.5-metre setback.
"The MDP that you currently have references the Alberta government's policies regarding setbacks," Birch said. "They manage the setback requirements, but they do not require 60 metres."
The previous LUB, he said, references a 20-metre setback, but the current bylaw, in his opinion, would result in a 7.5-metre distance.
"I have to confess, I find the setbacks as set out here to be confusing, just because there is so much terminology," Birch said. "There have been changes over time from 60 metres, to 20 metres, to 60 metres and the current buylaw is not especially clear, but I think the 7.5-metre setback is clear."
While the Town of Canmore's bylaws does not offer any legislation around viewshed protection, Birch argued protecting views for the neighbouring properties is an important consideration.
"You can see the interest of protecting the view up and down the valley, so that is our No. 1 concern," he said. "The second is wildlife accommodation."
He said there is an unofficial wildlife movement corridor that would be protected by the 60 metre setback. Birch said that was the original reasoning for the other properties to have such a large setback from the river.
He also argued for regulatory consistency – that the rules used for the neighbouring properties should be maintained for the two remaining vacant lots. It would also mean consistency along the Van Horne streetscape in terms of where homes are located with respect to the roadway.
"Typically, subdivisions align the dwellings with some consistent distance from the road," Birch said, arguing consistency contributes to neighbourhood cohesiveness. "In this case, if the dwellings are allowed to be back close to the rear-yard setback, that is gone."
Birch noted the owner of the vacant lots would still be able to build to the same size of footprint if the district was approved.
Several of the homeowners spoke to the application. Russell Stanley said by not having the same setback, development of these lots would negatively effect his family's enjoyment of their property.
"I believe it comes down to an issue of fairness," Stanley said. "The existing five homes were built with a 60-metre setback enforced by the Town.
"Our understanding was that this was an environmental setback that would not change. We designed and built our home based on that."
