WHEREAS subdivision appeals with the exception of those dealing with land involving defined provincial interest areas are to be filed with the local subdivision and development appeal board;AND WHEREAS those subdivision appeals on lands within a certain distance of a highway, a body of water or a sewage treatment or waste management facility as set out in the subdivision regulations, are to be filed with the Municipal Government Board (MGB);AND WHEREAS these subdivision applications can be deemed refused at the local level and no local decision making, public consultation or hearing is available;AND WHEREAS municipalities and the public have expressed concern that provincial departments repeatedly show little or no interest in presenting their views before the MGB and as a result provincial interests are not well identified by the MGB appeal process; AND WHEREAS the MGB hearing process does not allow all persons with legitimate interests to address the Board at the hearing; AND WHEREAS decisions of the MGB regarding subdivision applications are binding on municipalities and require municipalities to closely monitor at their expense and potential liability the conditions of subdivision imposed by the MGB; AND WHEREAS municipalities have no alternative but to turn to the Court of Appeal to appeal MGB decisions, but can do so, not on the merits of the application, but rather on process and jurisdiction;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties hereby request the Government of Alberta to review and amend Section 678 of the Municipal Government Act to reflect that all subdivision appeals are to be heard by the local subdivision appeal board, unless and until the affected provincial department confirms in writing that a specific provincial interest is at jeopardy, and that it will clearly and vigorously identify and argue on behalf of said interest at the MGB hearing and that any person claiming to be affected by this issue shall be heard by the MGB.
On Tuesday September 12, 2000, Chief Justice C.A. Fraser, Justice A. Fruman and Justice N.C. Wittman unanimously denied the appeal by the Municipal District of Rocky View #44 of the order of the Municipal Government Board (MOB 248/95) dated October 7, 1998 permitting the Herron Estate to subdivide and develop 25 lots adjacent to the Elbow River in the Hamlet of Bragg Creek. The development is in the flood fringe of the Elbow River, which is a source of the drinking supply for the City of Calgary.One of the grounds on which the Municipality appealed the decision of the Municipal Government Board was that the Board erred in law because it had insufficient evidence as to the groundwater level of the proposed development site, which was critical to determining the suitability of the site for 25 sub-surface sewage systems.In light of the current and ongoing problems with contamination of groundwater in the Hamlet, in September 1998 the M.D. of Rocky View adopted a Hamlet Area Redevelopment Plan, which prohibited subdivision and development in the Hamlet until a Hamlet-wide solution to solve the contamination could be implemented. This was in part to address potential health risks to the residents of the Hamlet. The Municipal Government Board approved the Herron development despite this prohibition and the opposition of the municipality and area residents. The issues surrounding the Herron Estates approval by the MGB were identified to be: where subdivisions are deemed refused at the local level, and because of the land being adjacent to a water body, sewage treatment plant or highway, they end up at the provincial appeal body, the MGB, which is not aware of or displays little appreciation for local issues and concerns, the MGB hearing process unfairly restricts speakers/interveners to those immediately adjacent property owners that have property touching the land in question, and does not allow others who also have legitimate interests or concerns to be heard, no local decision making or appeal occurs, the provincial interest that led to the MGB hearing the application is not clearly identified as to significance, and provincial departments such as Environment decline to take an active role at the MGB hearing to support environmental issues, therefore the provincial interest is never clearly articulated and the MGB ends up hearing essentially a “local” appeal.The most significant point is that the provincial interest in many applications is not affected and the provincial agencies are not interested in the proceedings. The local interest is completely ignored by the MGB (local planning is not binding on the MGB) with devastating affects on the local community for which the local authority is ultimately responsible both legally and politically. This is one of the most glaring examples of a situation wherein the municipality has all the responsibility without any authority.The AAMD&C considered in the fall of 1997, three years ago, a similar resolution and the Province indicated in their response that they would review the process and look at ways to send these items to the local appeal process.