WHEREAS in the July 31, 2007 judgement handed down in the matter cited as “Craig v. Bighorn (Municipal District No. 8), 2007 ABQB 507” (Docket 0601 12956, Calgary registry), the decision of the Honorable Madam Justice M.C. Erb states:”I find that the decision of the MD of Bighorn was not reasonable in all of the circumstances. Accordingly, its decision disallowing the amendment to the Bylaw is set aside…Accordingly, the [MD of Bighorn’s] Land Use Bylaw is amended as it pertains to the Applicant’s property. A permit will be issued for a five-year period effective from the date of these reasons with any renewal thereafter not to be unreasonably withheld.”WHEREAS this judgement affects the ability of every municipal Council in the Province of Alberta to exercise their authority with respect to land use planning, development control, and other related matters, extended to those Councils through the provisions of the Municipal Government Act; and WHEREAS the MD of Bighorn believes that this judgement must be appealed, for the benefit of not only Bighorn ratepayers, but on behalf of all Alberta municipalities; and WHEREAS the MD has already spent close to $65,000 in legal fees in this matter to date;
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 31 July 07 judgement issued by Mdm. Justice Erb is attached. In short, Justice Erb has ordered the MD’s Land Use Bylaw amended, and also ordered the issuance of a development permit, both to accommodate the wishes of the appellant in the case. The MD’s position is that this ruling is an exceedence of judicial authority and responsibility. The Municipal Government Act grants powers to municipalities to pass land use bylaws, and issue development permits, within a framework of democratic government process. In both cases, the appellant applied for land use bylaw amendments and development permits (to re-zone his property and allow him to use the land in a fashion not permitted under the existing zoning), went through the necessary public notification/involvement processes, and was refused/denied both land use bylaw amendments and development permits. Appeals, when possible, to the local Subdivision/Development Appeal Board were also denied, again after the democratic process was followed, with appropriate public notification/involvement. There is a potential, if this judgement is not appealed, for any municipality to encounter a possible judicial order to amend its land use bylaw, and/or be ordered to issue a development permit, by a sole justice of the Queen’s Bench, thus over-riding the democractic wishes of municipal electorates throughout the province. This is a precedent-setting ruling, with far-reaching implications.
The AAMDC has no current resolutions directly related to this issue. However, the AAMDC’s formal position through the Landuse Framework consultations and as outlined in Higher Ground: Municipal Land Use Planning is to ensure that land use decisions are made at a grass-roots or local level. Municipal autonomy as enshrined in the Municipal Government Act must be maintained. Municipalities must have the authority to use regulations to enforce appropriate land use by the public.
The Court of Appeal ultimately determined that the Queen’s Bench Justice incorrectly applied the reasonableness test in 2007 and the Councils 2006 decision on the rezoning application was reasonable and must stand. The Court of Appeal went on to determine that the appropriate standard of review for them to apply today to the 2006 MD of Bighorn Council decision was the post-Dunsmuir decision (2008 SCC decision) of reasonableness with a notation of deference. The Court also had regard to Section 539 of the MGA which provides that no resolution or bylaw may be challenged on the ground that it is unreasonable.