MGB FILE NO. I6/IMD/001 IN THE MATTER OF AN INTERMUNICIPAL DISPUTE INITIATING CITY OF CHESTERMERE MUNICIPALITY RESPONDENT ROCKY VIEW COUNTY MUNICIPALITY DOCUMENT LEGAL BRIEF OF THE CITY OF CHESTERMERE NAME C. Richard Jones (ORGANIZATION) McMillan LLP ADDRESS FOR 1700, 421 – 7th Avenue S.W. SERVICE Calgary, AB T2P 4K9 EMAIL [email protected] TELEPHONE Phone: 403-531-8739 (FOR PERSON FILING Fax: 403-531-4720 THIS DOCUMENT) File No.: 236169 TABLE OF CONTENTS INTRODUCTION..........................................................................................................................1 FACTS ............................................................................................................................................1 ISSUES – DETRIMENTAL EFFECTS ......................................................................................2 SUBMISSIONS ..............................................................................................................................3 INTRODUCTION 1. On January 6, 2016, the City of Chestermere (“Chestermere”) filed an appeal under Section 690 of the Municipal Government Act against the Rocky View County Bylaw C-7468- 2015, Conrich Area Structure Plan (“Conrich ASP”) adopted by Rocky View County (“Rocky View”) after third reading which took place on December 8, 2016. 2. Chestermere appeals the entire Conrich ASP on fourteen grounds that can be generally summarized as detrimental effects in five key areas: a. Wetland and stormwater; b. Transportation; c. Social infrastructure; d. Economic development; and e. Land Use and regional planning. FACTS 3. Chestermere and Rocky View are adjacent municipalities that share contiguous municipal boundaries. 4. An intermuncipal development plan between Chestermere and Rocky View has not been adopted, so there is no existing framework for intermunicipal collaboration. 5. The Conrich ASP incorporates the Hamlet of Conrich (“Conrich”) and encompasses 68 quarter sections for a total of 4,402 hectares (10,786 acres). The Conrich ASP area is greater than the area of Chestermere (8,066 acres approx.) and greater than any previous ASP in the history of municipal planning in Alberta. 6. The Conrich ASP proposes converting land use from primarily agriculture to commercial and industrial uses as follows: Land Use Type Gross Area Hectares (Acres) (1) Commercial 575 (1,419 acres) (2) Industrial 1,957 (4,836 acres) (3) Commercial/Industrial 131 (324 acres) Total 2,662 (6,679 acres) - 1 - 7. The Conrich ASP proposes commercial and industrial development both north and south of the Trans-Canada Highway (Highway 1), starting immediately east of the municipal boundary of Calgary and along the northern municipal boundary of Chestermere. 8. The facts are more specifically set out in the factual submissions of Chestermere submitted concurrently with this brief. ISSUES – DETRIMENTAL EFFECTS A. Wetland and stormwater i. Conrich ASP does not properly address wetland preservation and proposed development cannot be supported by existing regional stormwater infrastructure; B. Transportation i. Proposed land use is incompatible with existing transportation infrastructure C. Social infrastructure i. The Conrich ASP does not take into account social infrastructure D. Economic development i. Chestermere will suffer adverse economic impacts ii. The Conrich ASP proposed commercial use greatly exceeds population capacity and is unsustainable iii. Current labour market cannot supply or sustain proposed commercial and industrial use set out in the Conrich ASP iv. Proposed industrial use greatly exceeds market capacity in terms of employment and services E. Regional planning i. The Conrich ASP contains no framework for regional and intermunicipal planning ii. The Conrich ASP’s proposed land use along the Highway 1 corridor are, and will continue to be, incompatible with adjacent residential development in Chestermere iii. The Conrich ASP fails to address and meet Outcomes and Strategic Directions, and Objectives of the South Saskatchewan Regional Plan, and in particulars, fails to: - 2 - i) Take into account environmental sustainability and social outcomes; ii) Advance watershed management; iii) Promote the efficient use of land; iv) Address the detrimental effects on Chestermere; v) Properly identify agricultural land and limit their fragmentation and conversion to non-agricultural uses. SUBMISSIONS APPEALS UNDER SECTION 690 OF THE MUNICIPAL GOVERNMENT ACT 9. Pursuant to section 690 of the Act, upon receiving a notice of appeal from an adjacent municipality, the MGB must, subject to any applicable ALSA regional plan, determine whether the statutory plan in question is detrimental to the appealing municipality. Municipal Government Act, RSA 2000, c M-26 [TAB 1] 10. The MGB has jurisdiction to either a) dismiss the appeal if there is no detriment or b) order the offending municipality to amend or repeal the statutory plan or certain provisions of the statutory plan which are found to be detrimental to the appealing municipality. 11. More specifically, subsection 690(5), (6), and (6.1) state: (5) If the Municipal Government Board receives a notice of appeal and statutory declaration under subsection (1)(a), it must, subject to any applicable ALSA regional plan, decide whether the provision of the statutory plan or amendment or land use bylaw or amendment is detrimental to the municipality that made the appeal and may (a) dismiss the appeal if it decides that the provision is not detrimental, or (b) order the adjacent municipality to amend or repeal the provision if it is of the opinion that the provision is detrimental. (6) A provision with respect to which the Municipal Government Board has made a decision under subsection (5) is, - 3 - (a) if the Board has decided that the provision is to be amended, deemed to be of no effect and not to form part of the statutory plan or land use bylaw from the date of the decision until the date on which the plan or bylaw is amended in accordance with the decision, and (b) if the Board has decided that the provision is to be repealed, deemed to be of no effect and not to form part of the statutory plan or land use bylaw from and after the date of the decision. (6.1) Any decision made by the Municipal Government Board under this section in respect of a statutory plan or amendment or a land use bylaw or amendment adopted by a municipality must be consistent with any growth plan approved under Part 17.1 pertaining to that municipality. 12. The Board may exercise its remedial power under subsection 680(5) if, on the balance of probabilities, the appealing municipality shows that the: a. The statutory plan is contrary to an applicable ALSA regional plan, or b. The statutory plan is detrimental to the appealing municipality. DETRIMENT AND DETRIMENTAL EFFECTS UNDER SECTION 690 OF THE MUNICIPAL GOVERNMENT ACT 13. In this case, upon receiving the City of Chestermere’s notice of appeal and statutory declaration pursuant to section 690 of the Act, the MGB became charged with determining whether the Conrich ASP is detrimental to the City of Chestermere. 14. While detriment and detrimental effects are not defined under the Act, the MGB has previously considered these terms in prior decisions. 15. In the MGB’s decision in Sturgeon (County), Re, “detriment” is to be interpreted in the normal sense of the word and means “damage, injury or harm, or anything that causes damage or injury.” Sturgeon (County), Re, 1998 CarswellAlta 1764 at para 186, Alberta Municipal Government Board [Sturgeon] [TAB 2] - 4 - 16. In Sturgeon, the MGB held that there were at least three types of detriment summarized as follows: Detriment can arise from actions undertaken by a municipality which cause noxious odours, excessive noise, air pollution, or groundwater contamination which have the power to affect lands far from the site of the offending use; Detriment can arise from the haphazard development and fragmentation of land on the outskirts of a city or town and which may cause problem to future redevelopment of those lands. This type of detriment includes adverse social and economic impact, and also includes actions which may interfere or potential interfere with the development of another municipality; and Detriment can arise where one municipality attempts to appropriate for itself the kind of land use and development customarily accommodated by another municipality. See ibid, at paras 186 - 188 17. The MGB futher stated “detrimental effect is not confined to a specific, concrete impact within the boundaries of appellant municipality” but includes “detriment in a general sense.” Ibid, at para 12 18. The MGB has widely adopted and applied the definition of detriment articulated in Sturgeon. 19. For example, Sturgeon was relied on by the Board in Okotoks (Town), Re, where it held that “although not bound by its previous decisions, the MGB finds it useful, in some circumstances, to use established meanings and thresholds. For s. 690 appeals, [Sturgeon] contains a thorough discussion of detriment.” Okotoks (Town), Re, 2012 CarswellAlta 130 at para 26, Alberta Municipal Government Board [Okotoks] [ TAB 3] 20. Similarly, the parameters established in Sturgeon were followed in Drayton Valley (Town), Re, where the MGB held: The Board having looked at the definitions is of the opinion that, in this instance, the better reference for the meaning of detriment and - 5 - its application to planning for future land uses, is taken from pages 42 and 43 of the Municipal Government