WHEREAS the Municipal Government Act, Section 640(l) authorizes a municipality through its Land Use Bylaw to provide for the development of buildings on land that is unstable, low lying, marshy or subject to flooding, subject to certain conditions;AND WHEREAS the Municipal Government Act, Section 640(q) authorizes the establishment of related agreements, forms, fees or procedural matters under a land use bylaw;AND WHEREAS some municipalities do not wish to be excessively restrictive in regard to development on lands having a potential for subsidence under extreme conditions or the potential for flooding during an exceptional flood event; AND WHEREAS approval by a municipality for development on lands described as above may create a potential liability for the municipality in the future; AND WHEREAS Part 17 of the Municipal Government Act does not specifically authorize municipalities to register an agreement on the land title that saves the municipality harmless for damages due to land use decisions on potential hazard lands, thereby providing a measure of protection for municipalities against liability in the above circumstances;AND WHEREAS the Alberta Land Titles office refuses to register same on the grounds that municipalities are not authorized to do so;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties urge the Government of Alberta to amend Part 17 of the Municipal Government Act to provide for an agreement that saves the municipality harmless from land use decisions on lands having the potential for subsidence under extreme conditions or for flooding during an exceptional flood event, and that said agreement creates an interest in the land on the part of the municipality and becomes a permanent registerable instrument on the title of the land.
The Municipal District of Willow Creek No. 26 has two major streams traversing its land and is bounded by two others. In addition, the western portion contains foothills and other topographical features, including steep slopes.Through its Land Use Bylaw, the M.D. has a provision to require a surveyors certification that a development will be at or above the 1:100 flood plain level, and has established setbacks from an escarpment rim and steep slopes. Provision is also there to additionally require geotechnical engineers recommendations in regard to any development where topography is an issue, at the discretion of the Municipal Planning Commission.In addition to these safeguards, in the face of increasing liability cases, the municipality has for several years required the developer to enter into an agreement with the Municipal District which saves the municipality harmless for damages due to land use decisions on such potentially hazardous lands, should an abnormal natural event occur.An example of an extraordinary natural event would be the flood that affected southern Alberta streams in 1995. The Municipal District has been told that this flood was in excess of 1:1000. Extremely high rainfall can also affect normal slope stability.As further protection, the Municipal District has also required the registration of these agreements on the title of the land to ensure future purchasers are aware that the Municipal District shall not be held liable should such an extraordinary event occur.However, this past year the municipality has experienced increasing difficulty in registration of this type of document. It is now at the point where Southern Alberta Land Titles absolutely refuses on the grounds that municipalities do not have legislative authority to do so.The Municipal District contends that protection from liability does constitute an interest in the lands. It may be considered unreasonable to restrict development beyond the 1:100 flood plain or engineering recommendations, based on a potentially abnormal natural event occurrence. Nevertheless, in order to have protection from future liability claims, it may be the only course of action available if registration continues to be denied.This issue affects all municipalities, rural and urban alike, and the Municipal District of Willow Creek believes the majority share this concern.