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WHEREAS Section 678(2) of the Municipal Government Act states that the appeal of a subdivision authority decision lies with the MGB if the land that is subject to the application is within the distance of a body of water set out in the subdivision and development regulations; WHEREAS Sections 22(1)(a) and 5(5)(e) of Subdivision and Development Regulation states that if the proposed parcel (i) is adjacent to the bed and shore of a river, stream, watercourse, lake or other body of water, or (ii) contains, either wholly or partially, the bed and shore of a river, stream, watercourse, lake or other body of water, the subdivision authority must refer the subdivision application to Alberta Sustainable Resource Development for their review and comment; WHEREAS the MGB in Decisions 025/07 and 048/10 have ruled that where a body of water, as defined under the Water Act, is contained in either the proposed subdivided parcel or the remnant parcel, the MGB has jurisdiction to hear the appeal; WHEREAS under the Water Act “water body” means any location where water flows or is present, whether or not the flow or the presence of water is continuous, intermittent or occurs only during a flood, and includes but is not limited to wetlands and aquifers; WHEREAS virtually all proposed parcels or remnant parcels that are subject to a subdivision applications would contain a water body as defined under the Water Act meaning that an appeal would rest with the MGB; WHEREAS the intent of the new planning provisions introduced by the province back in 1995 were expanded powers for local appeal boards to hear subdivision appeals unless there was a provincial interest;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties encourage the Province of Alberta to: 1. Amend provincial legislation to more clearly state that a subdivision appeal lies with the MGB only on issues or matters that are demonstrated to be in the provincial interest; and 2. Amend Section 678(2)(a) of the Act by deleting the words “….or is within the distance of a highway, a body of water or a sewage treatment or wastewater management facility set out in the subdivision and development regulations” and substituting the words “or the appeal is commenced by a Government department notified pursuant to Section 678(1)(b).”
Among the new planning provisions introduced by the province back in 1995 were expanded powers for local appeal boards to hear subdivision appeals. Previously, development appeal boards were limited to hearing only development permit appeals. The new planning legislation required municipalities to establish new subdivision and development appeal boards. These new boards were mandated to hear all subdivision appeals, excepting those applications where the land that is the subject of the subdivision application is within the Green Area or where the land is within the distance of a highway, body of water, or sewage treatment or waste management facility set out in the subdivision and development regulations. This change was part of several new initiatives introduced by the province to give municipalities more local autonomy. Alberta Transportation has always advised us of any concerns or requirements with respect to a proposed subdivision. Pursuant to Section 678(2.1) of the Act, they have on several occasions advised us that, where they have no concerns or requirements, the Department would have no objection if any appeal of the decision by the County’s Subdivision Authority was heard by the County’s SDAB. This was always with the understanding that there was no other provincial interest related to the application. The county’s issue lies with cases where there is “water” on the lands proposed to be subdivided. The situation is not helped by the fact there is no definition under the Act or Regulation of what constitutes a “water body” or “watercourse”. We have until recently only referred applications to Alberta Sustainable Resource Development (SRD) when the “proposed parcel” contains, either wholly or partially, a (permanently and naturally occurring) watercourse or body of water nor is it bound by such a water feature. We had not considered the term “proposed parcel” to include the remainder of the existing titled area. Our interpretation of a “proposed parcel” was challenged at a recent SDAB hearing, and subsequently before the MGB where the appellant’s solicitor argued that the term “proposed parcel” also applies to the remainder of the existing titled area. The wording of current provincial legislation is confusing as there appears to be a discrepancy between the wording of the Act and the Regulation. The Act refers to the land that is the subject of the application, which implies that if there is a watercourse or body of water on the existing titled area, the application must be referred to SRD. The Regulation, on the other hand, uses different wording referring instead to the “proposed parcel” which, without the benefit of a definition in the planning legislation, led us to adopt the interpretation we did. As the Act takes precedence over the Regulation, we were advised by our own legal counsel to adopt the broader interpretation meaning that we should refer an application to SRD if there is a water course or body of water on the existing titled area. This means any appeal lies to the MGB, and not to the county’s subdivision and development appeal board. Adherence to this broader interpretation was subsequently confirmed by the MGB. Section 678(2.1) does allow for appeals that would ordinarily be considered by the MGB because of a “provincial interest” to be dealt with at the local level if the affected government department agrees to “vary the distance related to a highway, a body of water or a wastewater treatment or waste management facility set out in the subdivision and development regulations”. Alberta Transportation has quite often granted a variance allowing an appeal to be heard by the local board, unless there is another “provincial interest” relevant to the application. However, SRD has never granted us any kind of waiver or variance. Frankly, this seeming reluctance by the department to grant any waiver or variance is quite unreasonable, especially when they have previously advised us they do not have the resources to respond to every application referred to them. And to cap it all, SRD officials have seldom attended appeal hearings before the MGB involving a subdivision application in Lacombe County to address their concerns or requirements. We would suggest that provincial legislation should be amended to more clearly state that a subdivision appeal lies with the MGB only on issues or matters that are demonstrated to be in the provincial interest, instead of the blanket regulation that automatically directs an appeal to the MGB due to the mere presence of water on land proposed to be subdivided. It is proposed that Section 678(2)(a) of the Act be amended by deleting the words “… or is within the distance of a highway, a body of water or a sewage treatment or wastewater management facility set out in the subdivision and development regulations” with the following “or the appeal is commenced by a government department notified pursuant to section 678(1)(b)”. We believe that this change would not only address our concerns but would still adequately protect provincial interests. We concur that provincial interests must be protected, and we believe that this is the intent of the current legislation and regulations. The proposed amendment would maintain that principle. Should a subdivision authority not adequately address government department recommendations or concerns, the department could then commence an appeal with the MGB. It would also help if the Act and/or Regulation contained a clear definition of a “water body” and “watercourse” that would limit subdivision referrals to SRD to what is of interest or possible concern to SRD. In our view, these changes would be a more appropriate and focused response to what SRD may be able to handle in terms of subdivision referrals and it would also limit the appeal case load for the MGB to matters that are genuinely of provincial interest or concern.
2-08S: THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties urge the Government of Alberta to have Alberta Sustainable Resource Development immediately resume the valuable service they provided in the past through their detailed review for each referral received involving a proposed subdivision to identify any provincial interests.
Throughout 2010, the AAMDC worked to put together recommendations for change to Part 17 of the Municipal Government Act. This issue was highlighted in a draft recommendation that was put to the membership for final comment. The solutions to the issue suggested here could be incorporated into the AAMDC’s Final Recommendations for Change to Part 17 of the MGA.
Municipal Affairs: Thank you for providing your concerns with those sections within Part 17 of the Municipal Government Act which are related to subdivision appeals and provincial interests (water bodies). We will add your concerns to our database on issues for review and we will evaluate them as part of the next Municipal Government Act review. Municipal Affairs is taking the time to develop a comprehensive work plan regarding the review. Although a specific date for commencing the review has not been set, the Municipal Government Act will be analyzed in several stages. It is anticipated that each stage will require at least two years for review, prior to the development of any recommended amendments, if required. The ministry respects and appreciates the AAMDC’s continuing interest and contribution toward this initiative. Contact: Ron Cust, Director of Legislative Projects Local Government Services, 780-422-8322 Municipal Government Board: The Municipal Government Board (MGB) understands that the intent of the legislation is to ensure that subdivision appeals, where there is a provincial interest in the land, are to be heard by the MGB. This principle appears to be embodied by the provision in s. 678(2)(a) of the Municipal Government Act that “land that is the subject of an application” be heard by the MGB when within the distances set out in the regulation. The MGB observes that there can be provincial interest in either the “proposed parcel” and/or the “remnant parcel” and in some cases the labelling of the parcels is arbitrary; for example, when there are two equal sized parcels being created. It may be more appropriate for the affected government department to provide input as to where provincial interest lies. The MGB takes its role of balancing the greater public interest and the rights of landowners very seriously and is committed to ensuring that all parties have a fair hearing and receive timely and well reasoned decisions. Contact: Ken Lesniak, Chairman, Municipal Government Board, 780-422-8655
The government is expecting that this issue can be discussed during the review of the MGA. However, the lack of indication of support for change does not provide sufficient confidence that the intent of the resolution will be achieved. The AAMDC will encourage the government to address the concerns regarding the broad definition of what constitutes a provincial interest through future meetings with the minister and during the upcoming MGA review.