WHEREAS municipalities face many legal issues and matters that are in common with, relevant to, affect, or impact other municipalities; and
WHEREAS the Alberta Association of Municipal Districts and Counties (AAMDC) is the advocate for rural Alberta; and
WHEREAS the AAMDC adopted a policy in July 2008 regarding involvement in member legal matters whereby only through an endorsed resolution it will become involved in member legal matters; and
WHEREAS the County of Vermillion River has been involved in a legal matter regarding the composition of the appointed Sub-Division and Development Appeal Board that sat to rehear an appeal matter involved the municipalitiy of the County of Vermillion River and C. Beier/Gessner, Decision 2009 ABCA 338;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties membership support, as set out in the AAMDC Policy Involvement in Member Legal matters, financial support for the legal appeal to the provincial appeal court regarding the composition of the Sub-Division and Development Appeal Board appointed by the County of Vermillion River when they sat to rehear an appeal matter that involved the municiplaity of the County of Vermillion River and C. Beier/Gessner.
The Municipal Government Act Section 627-30 requires a municipality to establish a Sub-division and Development Appeal Board (SDAB) and states that if there is no Municipal Planning Commission, council members can be appointed to this board if they are in the minority. The County of Vermillion River does not have a Municipal Planning Commission.
This case and decision is of interest to all municipalities, who must have a SDAB, as the judges have ruled that a new SDAB panel should hear a new hearing. A past decision by the courts had upheld a SDAB to have most of the same members sit at a new hearing and in that case there were 4 out of 5 of the previous members who were the same. The County of Vermillion River relied on the past decision, the fact that the judge sending it back to be reheard did not stipulate that a new board must hear the matter, that MGA parts 17 Division 10 Section 678-689 does not address this situation and that members of the SDAB felt that they could sit at the new hearing and make a decision with an open mind.
In view of this decision and the precedent it establishes municipalities should have enough members to sit on both the original and a new hearing or their bylaws governing appointments to the SDAB should provide for temporary appointments to the SDAB when necessary.
The applicant was only successful regarding bias of the membership of the board whereas the adequacy of the decision for the issue under appeal, regarding the proposed new building and impact of adjacent landowners controlled by our Land Use Bylaw, was upheld.
This resolution was carried at the AAMDC Zone 5 meeting in January 2010.
The AAMDC’s policy provides guidelines for the Association’s involvement in the legal affairs affecting or legal actions involving members. This includes but is not limited to the time of the involvement, the level of participation and any financial contributions. This assists the AAMDC in balancing member-directed involvement in legal affairs with fiscal and resource management in the support and protection of member interest while mitigate the risks to the organization.
Several resolutions regarding defense of legal issues that apply to all municipalities have been supported in the past including 17-07F regarding the authority granted by statue to manage land uses and issue development permits.
The AAMDC has an important policy relating to this resolution. It is as follows:
Title: AAMDC Involvement in Member Legal Matters Policy No. 006
Purpose: To provide guidelines for the Association’s involvement in the legal affairs affecting or legal actions involving members. This includes, but is not limited to, the timing of the involvement, the level of participation and any financial contributions.
Policy Statement: The AAMDC will balance member-directed involvement in matters with fiscal and resource management in the support and protection of member interests while mitigating the risks to the organization. The Association has a mechanism to support issues of sufficient concern and of ultimate benefit to a majority of the membership.
1. It is only through an endorsed resolution that the AAMDC will become involved in member legal matters. For the purposes of this policy, member legal matters include, but are not limited to, legal appeals. Subsequent appeals will only be supported by the Association through a new member-endorsed resolution.
2. It is only through an endorsed resolution that the AAMDC can be directed by the membership to conduct a legal analysis or review of an issue.
3. The AAMDC will enter into a specific agreement for each member-directed legal matter to establish the items outlined in Procedures 4, 5 and 6 below.
4. The AAMDC reserves the right to engage legal counsel of their choice.
5. Regardless of the AAMDC being named as a plaintiff, the AAMDC becomes the lead in the legal action with full decision-making powers.
6. The AAMDC shall be the only entity authorized to provide direction to legal counsel unless expressly authorized by written consent.
7. The AAMDC will contribute 25 per cent of the legal costs up to a maximum of $10,000 in any member legal appeal.
8. The AAMDC will contribute up to a maximum of $5,000 to obtain a legal analysis or review.
9. Any remaining or additional legal costs pursuant to Procedure 7 or 8 will be requisitoned from the membership based on the formula used to calculate membership fees.
10. Any financial recovery that is realized from legal proceedings will be returned to the AAMDC and the members for costs inccured as outlined in Procedures 7, 8 and/or 9. Any damages or additional awards are not included in this policy.
Also related to the issue are these two AAMDC resolutions:
Resolution 10-08F: THEREFORE BE IT RESOLVED that the AAMDC membership support, as set out in the AAMDC Policy, Involvement in Member Legal Matters, the legal appeal to the federal court regarding the Canadian Radio and Telecommunication Commission (CRTC) Decision 2008-45 involving the municipality of Wheatland County and Shaw Cablesystems Ltd.
Resolution 17-07F: THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties (AAMDC) be authorized by its members to financially support the MD of Bighorn No. 8 in appealing the 31 July 07 Alberta Court of Queen’s Bench judgement in the matter cited as “Craig v. Bighorn (Municipal District No. 8), 2007 ABQB 507” for the benefit of all Alberta municipalities;
FURTHER BE IT RESOLVED that the AAMDC request the Government of Alberta to support this appeal, to confirm the authority, granted by statute, of municipalities to plan and manage land uses, and issue development permits.
The AAMDC is prepared to support this case and is awaiting further information as it progresses through the legal system.