Edmonton (Alta.) - 1975 - Towards a new planning act for Alberta_a review by the City of Edmonton

SD LIBRARY

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II Armone tkodoicam* LIE`.70if The City ot E.CiMOritOti

TO A NEW PLANNING ACT FOR ALBERTA

A REVIEW BY THE CITY OF EDMONTON FEBRUARY, 1975

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E3 1975

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FORWARD In early 1974 the Government of Alberta released a working document entitled "Towancbs a New Rearming Act L oft Atbetta". In his letter of transmittal, the Minister of Municipal Affairs, the Honourable D. J. Russell, encouraged public comment for the assistance of the Government in drafting a new Alberta Planning Act. The City of Edmonton welcomes the opportunity to react to the working document. The City believes that the document contains proposals which are at times imaginative, alarming, progressive and regressive.

The City of Edmonton trusts that this submission, developed on behalf of the Council by a Committee of Aldermen and administrative officials, will be given serious consideration. The Council views planning as one of its prime responsibilities. This submission represents its experience in the administration of planning legislation and its considered thought on improvements to the existing legislation designed to meet the challenges of the years ahead.

TABLE OF CONTENTS

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TABLE OF CONTENTS

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PART I

PROVINCIAL AND REGIONAL PLANNING*

1

PART II

MUNICIPAL PLANNING

8

PART III

LAND ACQUISITION AND COMPENSATION

38

PART IV

ENFORCEMENT

43

PART V

APPEALS

48

PART VI

GENERAL, TRANSITIONAL

53

*COMMENTS ON THIS PART WERE SUBMITTED TO THE PROVINCE OF ALBERTA IN JUNE 1974 BUT ARE INCLUDED HERE FOR REFERENCE.

TABLE OF CONTENTS

PAGE FORWARD

TABLE OF CONTENTS

PART I

PROVINCIAL AND REGIONAL PLANNING*

PART II

MUNICIPAL PLANNING

PART III

LAND ACQUISITION AND COMPENSATION

38

PART IV

ENFORCEMENT

43

PART V

APPEALS

48

PART VI

GENERAL, TRANSITIONAL

53

8

*COMMENTS ON THIS PART WERE SUBMITTED TO THE PROVINCE OF ALBERTA IN JUNE 1974 BUT ARE INCLUDED HERE FOR REFERENCE,

(1) OVERVIEW OF PART ONE - PROVINCIAL AND REGIONAL PLANNING For a number of years the City of Edmonton has been developing and consolidating its policy on the best form of local government for a complex urban area such as the Edmonton metropolitan area. Unitary government has been the form consistently selected as the official policy of the City of Edmonton.

Unitary government means one local government formed from the urban area, equipped with the resources and authority to carry out its responsibilities. The selection of this form represents a conscious rejection of the intervention of a fourth type of government between the municipal and provincial governments.

By its submission "A Statement on the Fututeo Thi6 City" the City of Edmonton requested the Government of Alberta to enunciate a policy decision on the question of urban form.

The City is alarmed and disappointed that the Government appears to be answering this submission through the establishment of Metropolitan Planning Commissions. These Commissions, under the guise of planning authorities, are being vested with the major responsibilities of local governments, that is transportation and utility systems and recreation facilities for the urban area.

The City of Edmonton rejects this denial of the democratic process whereby regional government is implemented through an appointed body. This proposition is particularly objectionable in that the people have no recourse to upset a decision of the appointed Commission.

(2) ALBERTA PLANNING BOARD - SECTIONS 3 The City of Edmonton supports strengthening the Board in order

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to provide a Provincial strategy and policy framework within which regional and local planning could be undertaken.

The City believes that the proposed size--a thirteen member board (Section 3(2)) is unwieldly. Additionally, the City believes that a quorum should be a bare majority of the members (Section 3(4)).

The City does not believe that it is appropriate to the role of the Board to assume ownership of land, nor should any appointed body have powers of ownership. Public ownership of land should be vested in crown corporations or governments but not appointed commissions. Therefore the City submits that 3(9) should be amended to provide for ownership only of the Board's offices and equipment.

In the statement of the objectives of the Board, the City believes that the use of the word "promote" implies an administrative role for the Board. The City suggests that wherever it appears in Section 4 the word "promote" be deleted and that the heading of Section 4 be amended to read "It is proposed that the objects of the Board would be to recommend provincial policy relating to".

The City of Edmonton believes that planning is a comprehensive activity of a local government which includes the planning of the scientific, aesthetic and orderly disposition of land, with a view to securing physical, economic and social efficiency, health and well-being in communities. This involves more than regulating land use. It is therefore submitted that the words "of use of land" should be deleted from Section 4(f) and the words "and regulation of the use of land" from Section 4.(g). Thus the Board would have as an object the encouragement of planning and public interest in planning as a comprehensive activity.

The City of Edmonton objects to the peculiar status accorded

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to the two metropolitan areas of Alberta, whereby the Board is to "prepare and adopt a metropolitan plan". It is an unconscionable intervention by an appointed provincial body into the right of the people of the metropolitan areas, through their own elected representatives, to determine their own planning goals through the preparation and adoption of regional plans. The City particularly objects to this provision in that this very right is continued for all the rest of the people of Alberta who live within the boundaries of a Regional Planning Commission.

It is the submission of the City that Section 5(f) must be deleted. Section 5(h)(iii) should be amended to read "summarizing its work relating to the adoption of regional plans".

(3) REGIONAL PLANNING COMMISSIONS

The membership of composed entirely at the discretion membership should

- SECTIONS 7 AND 8

a Regional Planning Commission should be of elected officials appointed for a term of the municipality or the Province. The reflect a better balance between urban and

rural residents. Provincial civil servants should be removed from voting membership on the Commissions since their presence mixes provincial administrative officials who are not directly accountable to the electorate and municipal elected officials who are. Provincial representation on the Commissions should be through Members of the Legislative Assembly. M.L.A.'s could provide a provincial and non-parochial perspective and are elected people.

If this suggestion is adopted, it is envisaged that a Technical Review Committee would be established composed of administrators of the commission, the municipalities and the province, chaired by the Director of the Regional Commission.

It is envisaged that such a process would decrease the meeting time of the Commission spent on detailed technical matters,

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provide better and co-ordinated technical advice on which the Commission could base its decisions and allow the Commission more time to deliberate policy matters.

In Section 8(3)(b) the words "powers and" and "except the power to adopt a regional plan" should be deleted and the word "council" should be replaced by the word "commission".

Section 8.4 should be deleted. No committee of the Commission should be able to do anything other than study in detail matters upon instruction of the Commission and to make recommendations back to the Commission.

Section 8(5)(c) should be amended to provide for land ownership only for the Commission's own offices and equipment.

A Regional Planning Commission should be able to establish its own procedures and regulations regarding terms of employment. There are vast differences in housing conditions, cost of living and general attractiveness between the regions of the province. Commissions should be able to offer salary incentives to compensate for these in order to be able to attract and hold the best planners possible (8)(6)(b).

Section 7 on the duties of a Commission completely omits various present duties of Commissions and mixes generalized statements and incompletely detailed instructions. Some amendment to this Section is necessary. The City's views on this Section will be submitted through the Edmonton Regional Planning Commission.

Sections 8(8) and 8(9) should be deleted. The City of Edmonton views with alarm the philosophy of allowing appointed Commissions to assume governmental control. These and other sections are viewed as the creeping genesis of a fourth-level regional government in Alberta and are therefore opposed by the City.

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(4) REGIONAL PLANS - SECTIONS 9 TO 11 Section 9(4) should be amended by deleting the word "Board" and adding the word "Commission". The Regional Planning Commission should be responsible for the preparation of the plan and the technical officials should be responsible to the Commission, not to the Alberta Planning Board.

Sections 9(5) to 9(7) contain an incomplete and sometimes superfluous catalogue of the contents of a plan. There again is the problem of mixing broad statements with "nitty gritty".

The competent professional planner will prepare a plan which is suited to the region and therefore this catalogue of contents of a plan may be omitted from the Act. Sections 10(6) and 10(7) should be deleted. The authority for approval of a regional plan should rest with the Regional Commission. The Alberta Planning Board and the Executive Council should not be intervening in the policy of the Regional Commissions.

It is suggested that when a Commission is prepared to adopt a regional plan, it should submit the plan to the Alberta Planning Board for its review and comments. This review should be limited to ensuring that the procedures and regulations of the Act have been followed and that the plan does not contravene any major provincial policies.

Upon completion of its review, the Board would send the plan and its comments back to the Regional Commission. The Commission could then proceed to adopt the plan. There is neither necessity nor reason for involving the Executive Council in the approval.

(5) METROPOLITAN PLANNING REGIONS - SECTION 12

The City of Edmonton, throughout this submission, will

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consistently oppose any move in the direction of a fourthlevel regional government. Section 12 denies the democratic process, implements regional government by an appointed body and denies the people of the metropolitan region any recourse to upset decisions of the metropolitan regional commission.

Section 12 should be withdrawn without delay as a serious intrusion into local autonomy.

The City of Edmonton believes that the local government unit should match the socio-economic unit and thus the "city" boundaries should include urban, urbanizing and urban fringe lands.

However, the place for the Provincial Government to implement policy on government structure is The Municipal Government Act. Such policy should not be implemented through planning legislation when much more than planning implications must be considered in establishing municipal boundaries and new municipal forms.

The City recognizes that a vacuum in metropolitan planning has existed in the past. However, there has been some increase in staff of the Edmonton Regional Planning Commission, especially in response to the Edmonton Growth Alternative Study.

Co-ordination of planning between the "city" and surrounding municipalities should be undertaken by the strengthened Regional Commission or a Committee, such as the present Metropolitan Committee of the Edmonton Regional Planning Commission.

(6) ALBERTA PLANNING FUND - SECTION 13 An evaluation of the present functions of a Regional Planning Commission suggests that the Commission staff is placed in a conflict situation with itself. When a member municipality requests a planning report, which is undertaken by Commission staff, the staff is responsible to both a municipal council and the Commission.

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If a legitimate policy difference exists between the member municipality and the Commission, the staff is placed in the untenable position of: a) recommending a plan with a local bias to the municipal council and concurrently recommending its rejection to the full Commission; or b) recommending a plan with a regional bias which the municipality rejects and recommends against at the Commission.

The City of Edmonton submits that the Commission staff should provide planning consultative services to only the smaller municipalities of say less than 1,000 population. Thus the planning needs of smaller municipalities, primarily villages and summer villages, would continue to be met by Commission staff.

The concept of the Alberta Planning Fund should be re-examined and the resources available to the Fund increased in order to permit all municipalities of over 1,000 population to hire their own planning staff. Such full or part-time staff would serve the interests of the municipality and minimize the conflict which regional planners currently face in concurrently advising local councils, as well as the Commission.

Under the existing fund all areas of the Province, with the exception of the cities of Edmonton and Calgary, are subsidized to up to 60 percent of their planning costs. It is requested that the Province rationalize the funding of planning operations within a system which provides equitable remuneration to municipalities without inhibiting the manner in which such funds might be expended.

(7) SPECIAL PLANNING AREAS - SECTION 14 This concept is generally supported in principle. Detailed comments will be made when companion sections of the working paper are reviewed.

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PART II - Municipal Planning (8) PROVINCIAL DIRECTOR OF MUNICIPAL PLANNING - SECTION 16 WORKING PAPER PROPOSAL It is proposed to create a position of Director of Municipal Planning to be responsible for local municipal planning matters in areas not presently covered by Regional Planning Commissions, which constitutes about one-half of the Province.

The Director of Provincial and Regional Planning would then provide for greater impetus to be given to Provincial and Regional Planning to recognize the highly inter-departmental nature of his functions, correct the current impression that planning is purely municipal and share the handling of all planning matters at the provincial level.

CITY OF EDMONTON POSITION A.

As the functions of the proposed Provincial Director of Municipal Planning will be municipal in nature in areas outside Regional Planning Commission boundaries, the City of Edmonton is not affected. The extent of his responsibilities are set out as two alternative Sections 16. In the second alternative the Provincial Director of Municipal Planning could advise and assist the Alberta Planning Board and regional planning commissions in their activities including the preparation of regional plans; this an inherant conflict situation with the Director of Provincial and Regional Planning.

B.

The creation of regional planning commissions in the areas not now covered would be beneficial in decentralizing the plan preparation and decision making process.

If this was done the need for a Provincial Director of Municipal Planning would disappear.

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(9) AREA PLANNING ADVISORY PLANNING COMMITTEES - SECTION 17 WORKING PAPER PROPOSAL In their search for a reasonably effect mechanism for citizens to participate in the planning process the authors reject as impracticable a "grass-roots" approach where decisions would be made at the local level and advocate instead that Area Planning Advisory Planning Committees be established. On the basis that in large urban centres citizens are much further removed from their elected representatives, the Committee would be mandatory for cities of over 25,000 population, optional for smaller cities. Council could divide the City into three planning areas, each area represented by an Area Planning Advisory Committee consisting of not less than five area residents appointed by Council for a three year term.

The responsibility of the Committee would be to advise and assist Council in the planning and regulation of development within the area. Council would be authorized to furnish each Committee with such funds that Council would consider appropriate including the hiring of staff and engaging planning and legal consultants.

CITY OF EDMONTON POSITION While supporting the principle of mandatory citizen participation in the planning process the City opposes legislation specifying the manner in which the participation should take place. Inasmuch as City Council's Ad-hoc Committee on Citizen Participation is currently reviewing this subject, no additional comments are presented at this time.

(10)COMMUNITY ORGANIZATION - SECTION 18 - WORKING PAPER PROPOSAL Community organization, whilst similar to Area Planning Advisory Committees, are permissive, not mandatory and are intended to represent community or neighbourhood opinions rather than a large portion of the City. A community organization could be designated by Council if it met certain

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requirements governing its membership and organization, and would then be entitled to receive notices, participate in hearings, file appeals and bring legal proceedings. Funding would be discretionary with City Council. The primary purpose of community organizations is to enable Council to give a recognized status to citizen groups thereby hopefully gaining positive input rather than negative reaction which is generally obtained from the Ad-Hoc groups that currently spring up from time to time in reaction to some proposed development in the area.

CITY OF EDMONTON POSITION No comment pending presentation of Ad-hoc Committee on Citizen Participation report.

(11) MUNICIPAL PLANNING COMMITTEES - SECTION 19 - WORKING PAPER PROPOSAL It is proposed to change the title of the present Municipal Planning Commission to Municipal Planning Committee, the purpose of distinguishing it from other Planning Commissions, and clarifying the intent of this body, namely to function in an administrative rather than a policy formulating capacity.

The Committee would comprise a minimum of five members all appointed City officials. The justification given for limiting membership to paid officials is to ensure that politics are removed from planning administration.

CITY OF EDMONTON POSITION A.

Oppose change in title. There is no evidence that confusion occurs at present, or is likely to occur with the addition of the proposed Metropolitan Planning Commission. The Municipal Planning Commission's title has become familiar to the development industry, the civic administration, relevant agencies and public groups, and a change would create confusion rather than avoid it.

II. B.

Oppose the mandatory requirement that Municipal Planning Commission members be appointed officials. Whilst Edmonton's practice has been traditionally to limit membership to appointed officials, (in contrast to Calgary) and would not be immediately effected by this proposed requirement, it limits Council's area of jurisdiction unnecessarily, particularly where citizen membership on the Municipal Planning Commission is conceivably a possible alternative to other methods of obtaining and evaluating citizen opinion on rezoning and subdivision proposals, for example.

(12) GENERAL MUNICIPAL PLANS - SECTION 20 - WORKING PAPER PROPOSAL The concept of the General Plan is to be retained, with a change in title to General Municipal Plan. However, General Municipal Plans would become mandatory for urban municipalities in excess of 3,000 population and the contents of the plan are much more detailed and explicit.

CITY OF EDMONTON POSITION A.

support concept of mandatory preparation and adoption of General Municipal Plans.

B.

oppose the inclusion of all-purpose clauses and lengthy content requirements of the Plan. The former tends to perpetuate a process which is obsolete and even harmful in coping with dynamic urban growth and change, the latter an unnecessarily long and very expensive catalogue of plan contents.

C.

oppose the requirement that General Municipal Plans be adopted within two years, as being completely unrealistic having regard to the detailed requirements for General Municipal Plans set out in the working paper.

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(13) AREA STRUCTURE PLAN - SECTION 21 - WORKING PAPER PROPOSAL That the Council could require the preparation of a plan establishing the overall planning framework for a developing area which would set out the basic circulation, utility and servicing, public facility, land use and population structure, in a more detailed manner than possible under a general plan.

More detailed development proposals, e.g., subdivision or redevelopment schemes would then be related to this framework.

Such plan would be adopted and amended by bylaw.

CITY OF EDMONTON POSITION This reflects the approach currently employed by the City of Edmonton (Outline Plans) except that its plan must be approved and amended by bylaw passed by City Council. The plan would then have a definite legal status; this concept is supported.

(14) AREA REDEVELOPMENT PLANS - SECTION 22 - WORKING PAPER PROPOSAL The legislation incorporates the need for municipalities to initiate or respond to the need for redevelopment and rehabilitation. The proposed section is general enough to accommodate a wide variety of plans, ranging from central business district redevelopment to neighbourhood improvement. Replacing the current Development Scheme Bylaw provisions, municipalities would have to set out the social, environmental and economic objectives of proposed plans and provide implementation relocation programs to minimize social and economic hardships evolved by the proposed program. Other specific characteristics include identification of method of implementation, scheduling and participation of private and public sectors, and the designation of lands to be acquired for public purposes. As in the current legislation, the right of expropriation is available to the municipality to implement the scheme given it is passed by bylaw. Emphasis is to be on rehabilitation rather than demolition.

Owners of land affected do not have claim to compensation.

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CITY OF EDMONTON POSITION The Area Structure Plan (Section 21) can be considered as an appropriate vehicle for the preparation and adoption of plans for the older parts of an urban area. It would be desirable to maintain the sections relating to the Development Scheme Bylaw in any new legislation.

(15) BYLAWS AND GENERAL DEVELOPMENT STANDARDS - SECTIONS 23 AND 24 - WORKING PAPER PROPOSAL It is proposed that there be one system of Land Use Control, rather than the two systems as presently permitted (and as employed by the City of Edmonton), Zoning and Development Control. Zoning has the advantage of certainty, but the disadvantage of rigidity; Development Control has the advantage of flexibility, but the disadvantage of uncertainty and instability. The proposal is to provide for a type of "zoning" which has flexibility built into it, and which does specify which controls within it are certain and predictable. The type of procedures involved would be standardized, without the two systems.

CITY OF EDMONTON POSITION A.

The principle of a single system of land use control is supported. It is less confusing to the general public, and presents only one system for administration. The proposal would provide for a clearer understanding of permitted and discretionary development and the balance between the two would be defined by the municipal legislation itself.

B.

The term "zoning" should not be used to describe the land use controls proposed. Zoning has the connotation of rigidity and inflexibility; this is not envisaged.

The bylaw should be referred to simply as a "Land Use Control Bylaw", which is what it is.

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(16) GENERAL DEVELOPMENT STANDARDS - SECTION 25 - WORKING PAPER PROPOSAL The section authorizes municipalities to impose certain minimum standards relating to a wide variety of matters, all related to manner of use and not to use per se. The posting of performance bonds is also provided for.

CITY OF EDMONTON POSITION A.

The City of Edmonton does not support the amount of detailed provisions which are specified as being allowed under the municipal legislation. Enabling legislation should not be of such detail; by attempting to list every conceivable item which may be contained within a zoning bylaw the danger arises that a Court may interpret that a detailed provision not listed within the Act may not be allowed within the bylaw. The Act should refer in broad terms to what may be included in a bylaw, leaving the detail and implementation to the municipal authority.

B.

The City of Edmonton does not support the inclusion within the Act that a bylaw may make provisions for such matters such as hours of operation of use, snow removal, etc. These are properly contained within other legislation.

C.

The City supports the intent of Section 25(3) which specifically refers to the matter of requiring penalty and/or performance bonds but the wording needs improvement.

(17) ROADWAYS, SERVICES, DEDICATIONS AND GENERAL LEVIES - SECTION 26 - WORKING PAPER PROPOSAL It is proposed that the Development Officer be granted the authority to require, as a condition of approval of development, the provision of money or the dedication of land, for

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public roadways and other municipal services as in his opinion may be required because of the development. This includes land for school grounds, parkland or other recreational areas, off-site cost levies for various services and the like. This authority will apply to both new development and redevelopment, and will make it possible to require these even where subdivision does not take place or where redevelopment at a higher density of use occurs.

CITY OF EDMONTON POSITION A.

The use or re-use of land invariably generates an increased need for certain public services as well as increased utility installations. The cost of providing these services should properly be the responsibility of the developer whose project will benefit directly by the provision of new or additional services. The City therefore agrees with the broad intent of this section.

The working paper attempts to achieve equitable participation by the establishment of fixed levies as a means of assigning development costs to the developer rather than to the municipality. However, the cost of new or improved municipal services, whatever they might be will vary substantially from one location to another. If it is agreed that the general public should not be responsible for the cost of services required as a result of specific development then there is no logic in the establishment of fixed levies. Rather it would be more appropriate for a municipality to determine, the specific costs involved and include those additional costs which can justifiably be assessed on an area basis as the subject of an agreement between the two parties. The amount of contribution by the private sector should reflect the costs involved in resolving deficiencies and not be based on fixed levies.

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B.

A further area of concern is the indication of an appeal level dealing with a judgement of the Development Officer made in respect to private sector contributions. It is assumed that the "Development Appeal Board" as established under the working paper would fill this role and it is respectfully submitted that no board, committee or administrative tribunal should be empowered to make decisions which could commit the city to public expenditure. This authority together with the accompanying accountability lies properly with the Council.

C.

In subsection (1)(b) the word "principally" is completely irrelevant as the purpose for the dedication is to acquire land or funds for public use and not principally for the use of the inhabitants of any one particular development.

It is further suggested that subsection (5) be amended to include development costs as well as land acquisition costs, at least in the case of parkland.

(18) REQUIREMENTS FOR DEVELOPMENT PERMIT - SECTION 27 - WORKING PAPER PROPOSAL This section, as proposed, would make it clear that a development permit must be issued prior to commencement of any development.

CITY OF EDMONTON POSITION A.

This section is supported, as it clarifies the requirements of the present Act; it also will require that any development taking place must conform in all respects to the terms, provisions and specifications of the permit when issued.

B.

In some instances developments constructed by the Crown or its agencies are not compatable with contiguous uses.

The City of Edmonton therefore recommends that the Act and any municipal legislation arising from it be made

17. binding on all land, including Crown Land held in right of the senior levels of government, or by any of their agencies.

(19) APPROVAL OR REFUSAL OF DEVELOPMENT APPLICATION - SECTION 28 WORKING PAPER PROPOSAL This section is intended to clarify procedures through which development applications are considered. Many of the procedures are currently in use but with greater flexibility and improved definition of the jurisdiction of the Development Officer. The Officer would be empowered to grant certain minor variances without reference to an appeal body.

CITY OF EDMONTON POSITION Section 28 (6) requires that when an application for a Development permit is refused, another application for a same or similar use cannot be submitted until at best twelve (12) months after the previous refusal. The City of Edmonton would propose that the period be adjusted to six (6) months where refusal was given by the Development Officer or the Municipal Planning Commission but left at twelve (12) months where it was refused on appeal. We would oppose a reduction to six (6) months generally so as to protect the citizen from a too frequent need for involvement if opposed (20) NOTICE OF DECISION - SECTION 29 - WORKING PAPER PROPOSAL That the present notification procedure be broadened to include community organizations and tenants as well as land owners in the area.

CITY OF EDMONTON POSITION A.

The section dealing with notification is in principle sound, but both difficult and impractical to administer when referring to "tenants". There is no known source

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of information to enable the City to notify such persons by mail. Therefore it follows that the alternatives i.e., hand delivery or posting of the site must be carried out as it is a requirement of the working paper that notice be given. Both alternatives are possible but require considerable staff resources to implement, with no real guarantee of complete circulation.

The problem, apart from staff resources and climatic difficulties, is that such a requirement for notification under the Act can in any given situation be challenged as incomplete. This could place the City in the impossible position of being responsible for carrying out procedures which cannot be ensured as complete and hence, subject to possible litigation resulting from non-compliance with the enabling legislation. The system currently employed in the City of Edmonton is working well and its retention is recommended.

B.

That 29 (d) which gives discretion to the Development Officer for such other steps on notification of materially affected persons and adjoining municipalities be amended to provide for such steps to be laid down in a bylaw of a municipality.

(21) CONDITIONS OF APPROVAL - SECTION 30 - WORKING PAPER PROPOSAL To provide a Development Officer with wide discretion in imposing conditions on approvals for discretionary or similar uses, but not for permitted uses.

CITY OF EDMONTON POSITION It is considered desirable, and in some cases essential, that the Development Officer be empowered to apply conditions relating to approved development standards regardless of the category of use (permitted or discretionary) and to require where considered necessary a bond or other surety to guarantee

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that the development will in fact be completed in accordance with the conditions and requirements imposed.

(22) DIRECT CONTROL ZONES AND SPECIAL DEVELOPMENT UNITS - SECTIONS 31 AND 35 - WORKING PAPER PROPOSAL These two Sections propose a form of "development control", in its traditional sense, which could be authorized and exercised through the new Zoning (Land Use Control) Bylaw. The Direct Control zone (Section 31) appears intended to apply to areas of a City, and would not make reference to permitted uses in the same manner as other zones. Other matters such as general development standards could be treated differently and specially in such a zone. The Special Development Unit differs in the manner the same end is achieved (Section 35). The latter is a form of "development control" exercised parcel by parcel through a specific rezoning to permit a specific development. It would require an agreement between a municipality and the applicant which would be caveated against the land.

An application could be approved only on the terms and conditions of the agreement; if no development took place or if the development were not in accordance with the agreement the zoning would revert to the previous zoning.

CITY OF EDMONTON POSITION A.

The City supports both these proposed concepts. Both embody the valuable aspect of development control in its traditional sense, in that development proposals may be evaluated solely on their own merits or within very broad development guidelines. Direct Control Zones would parallel the principle of development control on an area basis, much as the Land Use Classification Guide attempts to do now, with the exception that procedures would be standardized with other zones. Special Development Units appear to be a parallel to the City of Edmonton's present CD-1 Comprehensive Development District. The latter arose out of a felt City need.

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B.

The City suggests that it may be possible to accomplish the purpose of both these types of zone within a modified form of Direct Control. While it appears that Direct Control Zones would have area applicability, they could be made to also have individual development applicability, and embody the agreement provision, thus including the Special Development Units concept.

C.

The City supports the "reversion to previous zoning" requirement of the Special Development Units concept. If the development does not take place, or differs from that embodied in the agreement, it is appropriate that the zoning should revert and provide a start for a fresh evaluation and analysis.

(23) SPECIAL PRESERVATION ZONES - SECTION 32 - WORKING PAPER PROPOSAL The Special Preservation Zones as described in the proposed Planning Act lends itself to projects like the Strathcona Historical Area or Edmonton - Sherwood Park Greenbelt in which public acquisition is not practicable. Purpose of the special preservation zone as presented in the proposed Planning Act is close to Edmonton's Outline Plans or Calgary's Design Brief for Older Areas, guiding development in the subject area. However, under the present Planning Act necessary legislation to down zone or control development in a special preservation district is fragmented into several jurisdictions while in the New Planning Act the diverse regulations are brought together in the proposed special preservation zone.

Improvement of the proposed Special Preservation Zone over the development scheme bylaw in the current Planning Act is that it brings together various regulations and enabling legislation pertaining to down zoning and a Development Scheme Bylaw.

In addition, the section clearly states that public interest can be met without violating the private use of land.

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CITY OF EDMONTON POSITION While the proposed Special Preservation Zone has the strength of allowing both public benefit and private use, it is recommended: A.

That the powers of down zoning could be included in Section 21 and 22 (Area Structure Plans and Area Redevelopment Plans).

B.

That compensation for public benefit would be better treated in a separate section similar to Section 135 of the present Planning Act thereby removing the question of compensation from the purpose of the Special Preservation Zone.

(24) LANDMARK PRESERVATION SITES - SECTION 33 - WORKING PAPER PROPOSAL The Landmark Preservation Section of the proposed Planning Act enables a Municipality to protect buildings of local historical or architectural merit which do not qualify for protection under the Alberta Heritage Act. What is provided by the proposed Landmark Preservation Section is an opportunity to protect buildings of local merit without purchasing the property, e.g., McDougall House. Like the Special Preservation Zone the Landmark Preservation Section utilizes partial compensation for lost value of the subject property. However, where enabling legislation for Landmark Preservation Sites differs is that it will rely on a transfer of development rights in the open market rather than a compensatory fee by the Municipality.

CITY OF EDMONTON POSITION Implementation of the Landmark Preservation Scheme through a transfer of development rights has been instituted in the United States for sometime, most notably Chicago and New York

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City, with mixed results. In reviewing reports on the transfer of development rights in the two United States Cities criticism has been the limitation of where density may be transferred. In particular, the New York example has received considerable criticism for limiting a transfer to an adjacent site and requiring an excessive number of authorizations for a transfer of density rights. Where the New York example applies to the New Planning Act's proposed Landmark Preservation Scheme is that the proposed scheme limits the transfer of density to a similar zoning or Land Use Classification, e.g., R-1 to R-1.

A.

That the enabling legislation for transfer of development rights should not be so specific as to specify how and where transfers may occur, but should be more experimental; allowing a municipality to tailor the Landmark Preservation Scheme to their local requirements.

B.

That the problem of a transfer of density should not over-develop the recipient site to the detriment of the surrounding area.

C.

No compensation would be payable if the development continues to have a viable use (not necessarily the highest use).

(25) PERMITS IN SPECIAL PRESERVATION ZONES - SECTION 34 - WORKING PAPER PROPOSAL The purpose of this section, Permits and Special Preservation Zones, is twofold; firstly, to warn any prospective buyers that there are restrictions attached to a site, and secondly, to provide administrative machinery for processing development applications on these sites.

CITY OF EDMONTON POSITION To date, Caveats as included in the proposed permit section

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have proven to be an adequate means of controlling development. The proposed use, heritage or environmental preservation restrictions would be an uncomplicated addition to the present restrictions carried in Caveats.

(26) PROCEDURE FOR ENACTING BYLAWS - SECTION 36 - WORKING PAPER PROPOSAL The main effects of Section 36 are to: A.

broaden the range of official bodies or persons who must review proposed bylaws and make recommendations concerning them;

B.

lengthen the time period which must elapse between the notification regarding a public hearing and the hearing itself;

C.

allow a council to make regulations respecting the procedure for presentation of submissions; and,

D.

require the notification to agencies or persons or the public prior to giving the bylaw first reading.

These procedures would apply equally to general plans, zoning bylaws, outline plans, etc. or amendments thereto.

CITY OF EDMONTON POSITION A.

Rather than have a new Provincial Director of Municipal Planning advise as to conformity of the proposed bylaw with the Act (36, (1)e) it is requested that the Municipal Planning Commission be designated to fulfill this role.

B.

The extension from 10 to 30 days between notification and public hearing seems excessive where a reasonable system for public participation is in effect. The length of time should be related to the public participation process which might finally be proposed in a new Planning Act or as might be set up in a municipal bylaw.

24.

(27) BYLAW AMENDMENTS - SECTION 37 - WORKING PAPER PROPOSAL It is proposed that Council could, in passing a bylaw amendment, attach conditions or a time limit whereby the zoning might revert to the previous zoning. The application fee is left at $100. and Council might refund all or part of the fee.

CITY OF EDMONTON POSITION A.

Although it might be argued that a rezoning is either bad and therefore refused or good and therefore made permanent, there seems to be instances where rezoning applications are primary tools for increasing land value for resale with there being no intentions of proceeding with the development. This type of activity can be harmful to sound community development. Therefore, support is given to the proposal of conditional amendments.

B.

The City of Edmonton has previously petitioned the Minister of Municipal Affairs to enact legislation enabling a council to set a fee for applications which is related to the increase in value which may occur by virtue or rezoning. The City continues to support that request. The proposed (and present) maximum bears no relationship whatsoever to the costs of processing such applications; it is demonstrably low.

C.

The processing of a zoning amendment is an expensive, time consuming process; an increase in land value is likely with each rezoning. The process should therefore not be subsidized by the taxpayer as would occur if the fee was refunded in whole or part if the amendment was adopted. Section 37(7)(e) is therefore opposed.

(28)NON-CONFORMING USES AND BUILDINGS - SECTION 38 - WORKING PAPER PROPOSAL Under the current legislation non-conforming uses or buildings

25.

have a very restricted existence. The user can neither reduce the intensity of use nor can he increase the intensity, and the City, whether it wishes to terminate or modify the use or building is equally restricted. The working paper provides flexibility to do these things and, in addition, allows the City to acquire the non-conforming land or buildings (through expropriation where required) or alternatively to order the termination of the use or building (requires payment by the City of compensation). A third alternative provided is the concept of amortization whereby over a period of time the loss of investment by the owner will have been written off and the use or buildings terminated.

CITY OF EDMONTON POSITION A.

The proposed legislation is supported as permissive controls. In this case the City is not directed to follow any particular route but at the same time has been given options in determining how to deal with situations involving non-conformity, including the option of requiring that conditions relative to the use or building be upgraded.

B.

Section 38 (5) provides for rebuilding, structural alterations or extensions to non-conforming uses under certain conditions. It is requested that this opportunity not be made available for non-conforming uses in that if expansions, etc. can be effected without harmful effects to the area then the zoning is in error. A direct control zone could be used in those instances which contain elements of non-conformity but development would proceed with conditions.

(29) GENERAL PROHIBITIONS - SECTION 39 AND 40 - WORKING PAPER PROPOSAL The general intent, as in the present act, is to outlaw dealings in land that have the effect of subdivision without obtaining proper approval.

26.

CITY OF EDMONTON POSITION A.

To our knowledge no difficulties have been encountered by the existing definition of parcel as contained in Section 2(m) of the existing Planning Act and would recommend its retention.

B.

Although thought was given to recommending that the creation of condominiums be as if a subdivision were effected it is recommended that condominium applications be considered as developments and processed through land use control sections of the Act.

(30)SUBDIVISION REGULATIONS - SECTION 41 - WORKING PAPER PROPOSAL As in the current act, specific regulations for subdivision can be effected by the Lieutenant Governor in Council.

CITY OF EDMONTON POSITION Support.

(31)SUBDIVISION BYLAWS AND APPROVING AUTHORITIES - SECTIONS 42 AND 44 - WORKING PAPER PROPOSAL That the Council of a city could pass subdivision bylaws providing they were not inconsistent with the Act or the subdivision regulations which would allow a city some autonomy in setting standards and prescribing procedures subject to the provisions of the Act and Subdivision Regulations. A Subdivision Bylaw could prescribe that a Development Officer appointed under the Zoning Bylaw or a municipal planning committee, could receive and decide on some or all applications for subdivision approval.

CITY OF EDMONTON POSITION A.

Although there may be some merit in some municipalities having their own subdivision bylaws there is perhaps

27. greater merit in uniformity through Provincial regulation.

B.

That authority be given to the municipality to set its own subdivision application fee at a rate which reflects the actual costs of processing.

C.

Being strongly opposed to the creation of Metropolitan Planning Regions we oppose approval of subdivisions outside the City but inside the metropolitan area by the Metropolitan Planning Region.

(32) SUBDIVISION BYLAWS - OFFSITE LEVIES - SECTION 43 - WORKING PAPER PROPOSAL That by bylaw a Council establish a system of charges for certain off-site service costs at rates fixed in the Act. CITY OF EDMONTON POSITION A.

Agree with the principle of levies but in a period of inflation and with costs differing between municipalities and even within a municipality the limits on charges must be left for negotiation at the local level.

B.

The phrase in Section 43 "and not paid for out of the general revenues of the municipality" be deleted to permit contributions to be made by both a developer and the municipality where benefits accrue to each through the provision of that service.

(33) OUTLINE SUBDIVISION PLANS, PRELIMINARY SUBDIVISION PLANS, SUBDIVISION APPROVAL - SECTIONS 45 TO 47 - WORKING PAPER PROPOSAL Section 45 states that an approving authority may require an applicant for subdivision approval to accompany his application with an outline subdivision plan showing the land that is proposed to be subdivided together with sufficient of the surrounding area to demonstrate the relationship of the proposed subdivision to adjoining uses, public roadways, municipal services, parks and other facilities.

28.

Section 46, Preliminary Subdivision Plans, requires more information to be provided regarding the area to be developed and the nature of the development.

Section 47, Subdivision Approval, proposes that where a subdivision necessitates an amendment to a Zoning Bylaw, the approving authority (M.P.C.) would refer the application to the Council for a decision along with an application to amend the Zoning Bylaw. It also provides for an appeal to be lodged within 14 days back to the approving authority (except a Council). It would be required that decisions of the approving authority be mailed to community organizations, neighbouring municipalities, the regional planning commission and and persons making representations on the application.

CITY OF EDMONTON POSITION A.

These sections recognize the need for outline plans to be followed by other, more specific plans prior to a final form of subdivision submitted for approval. However, many of the requirements are onerous adding considerable time to the process and generally do not recognize the different but very workable systems the cities of Edmonton and Calgary have evolved over the years. The City of Edmonton has examined the system in Calgary and that city's comments on these sections in the Working Paper. We are currently preparing detailed material on our process but in the interim would support the concept that a developer may be required to prepare a conceptual plan which falls between our outline plans and neighbourhood outline plans so as to provide a proper framework for the neighbourhood outline plan. Further, that the bulk of the detail be provided in the neighbourhood outline plan which would receive detailed circulation.

The tentative plan of subdivision would only be reviewed upon approval of the neighbourhood outline plan and would contain detailed dimensions for surveying. This

29.

plan could be approved possibly by the Subdivision Officer if it conforms to previous plans.

B.

Inasmuch as the City of Edmonton is in the midst of refining its existing procedures and that the system in Calgary and Edmonton seem preferable to those proposed, it is requested that there be follow-up discussions at the technical level involving the two cities and the Province. It is recognized that the process proposed in the Working Paper may be suitable at the regional level; an optional process may have to be established for the two cities.

C.

Subsections 47 (1)(2) and (3) be deleted. Hence, city councils would not be involved in the subdivision process as an approving authority and referrals would not be made to Provincial departments.

(34) PLAN OF SUBDIVISION - SECTION 48 - WORKING PAPER PROPOSAL That the procedure for endorsement of a proposed plan of subdivision be streamlined by eliminating the necessity for the endorsed (by M.P.G.) linen to be re-endorsed by the Provincial Planning Director and the Director of Surveys.

CITY OF EDMONTON POSITION A.

Agree but that the signing authority be optional to the approving authority or its designated officer.

B.

That the Surveys Branch of the Land Titles Office be given responsibility to check the technical accuracy of subdivision plans.

(35) DEDICATION OF LANDS - SECTIONS 49 AND 50 - WORKING PAPER PROPOSAL Although the current maximum of 30 percent dedication for

29.

plan could be approved possibly by the Subdivision Officer if it conforms to previous plans.

B.

Inasmuch as the City of Edmonton is in the midst of refining its existing procedures and that the system in Calgary and Edmonton seem preferable to those proposed, it is requested that there be follow-up discussions at the technical level involving the two cities and the Province. It is recognized that the process proposed in the Working Paper may be suitable at the regional level; an optional process may have to be established for the two cities.

C.

Subsections 47 (1)(2) and (3) be deleted. Hence, city councils would not be involved in the subdivision process as an approving authority and referrals would not be made to Provincial departments.

(34) PLAN OF SUBDIVISION - SECTION 48 - WORKING PAPER PROPOSAL That the procedure for endorsement of a proposed plan of subdivision be streamlined by eliminating the necessity for the endorsed (by M.P.C.) linen to be re-endorsed by the Provincial Planning Director and the Director of Surveys.

CITY OF EDMONTON POSITION A.

Agree but that the signing authority be optional to the approving authority or its designated officer.

B.

That the Surveys Branch of the Land Titles Office be given responsibility to check the technical accuracy of subdivision plans.

(35) DEDICATION OF LANDS - SECTIONS 49 AND 50 - WORKING PAPER PROPOSAL Although the current maximum of 30 percent dedication for

30. roads remains, the land so taken would be limited to the land needed for circulation in the subdivision. The provision of reserves would be drastically modified to the extent that 5 percent of the area being developed becomes the statutory maximum compared to the present 10 percent, with the provision that an approving authority may obtain an amount up to an additional 10 percent if justified by the density of development.

The sections also make it clear that the approving authority may only require dedication including circulation to the extent that it is necessitated by the subdivision. Also, that where land in the proposed subdivision is to be divided into parcels of 20 acres or more, no reserves can be required.

CITY OF EDMONTON POSITION A.

Over the years the City of Edmonton has taken the full 40 percent available to it under current regulations.

Although the transportation requirement has been less than 30 percent in certain instances, the additional land has been transferred to needed school and park use or used to assist in providing for major transportation access routes which may be adjoining the subdivision or connecting it to other parts of the City. The City would be prepared to limit the amount of land taken to that needed for internal circulation and for roads, etc., providing access to the subdivision so long as the amount available for public purposes including reserves is as recommended below.

B.

Provision should be made for acquisition of lands for transportation purposes which might be in excess of the needs of the subdivision created with compensation payable as determined by agreement between the municipality and the developer. In some instances, because of regional transportation aspects, the total required might be in excess of that necessitated by the subdivision.

C.

The City opposes a reduction to 5 percent of land

31. subdivided for reserve purposes in that even a single family subdivision requires a 10 percent dedication for school, park and recreation purposes. The City agrees with the principle of increasing the dedication as density increases. To reiterate, there should be a minimum dedication of 10 percent, regardless of the land uses so that on a community wide basis, contributions are made by owners of developing lands to the provision and development of space for parks and recreation purposes.

D.

Subsection 50 (3)(a) proposes that no reserves can be required where parcels in excess of 20 acres or more are being created. It is difficult to understand the logic of this approach when those parcels could be used for intensive development of residential, commercial or industrial uses.

E.

Delete Section 50 (3) so that a) reserves are required for all parcels created at the time of subdivision. b) reserves not taken at this time can be obtained at the time of development as presented in Section 26.

(36) ROADWAYS, SERVICES AND GENERAL LEVIES - SECTION 51 - WORKING PAPER PROPOSAL The philosophy of this section is that each subdivision should pay its own way and no more and that the developer be required to provide for only those facilities (on and off-site) that are necessitated by the development. Any over-sizing intended to benefit other subdivisions is to be paid for by the municipality and recovered from subsequent developers later on. The developer would also be required to pay a general levy for facilities like water treatment plants, sewage treatment plants, and the like.

CITY OF EDMONTON POSITION A.

While support can be found for the Working Paper philosophy equal support can be found for the philosophy that a

32. subdivision participate in the burden imposed on a municipality as the initial subdivision opens a new path for development. At one time the City assumed costs of over-sizing but with limited resources the policy of requiring the initial developer to assume the burden temporarily until future subdivisions were effected was adopted. The City could not on its own provide the capital funds for installation of utilities in a variety of growth areas. Given a developers desire to proceed and the City's desire for effective competition to maintain lot price stability the existing City policy has proven reasonably effective.

B.

If the Province implements the philosophy espoused in the Working Paper municipalities must be provided with additional general revenue sources to support these capital expenditures or there be significant expansion of Federal-Provincial assistance for utility construction.

(37) MONIES IN LIEU OF DEDICATION - SECTION 52 - WORKING PAPER PROPOSAL That money in lieu of dedication be provided if land for reserves not required as per present legislation. Also, under 52(2) that where an authority does not expressly require dedication or payment of money in lieu of dedication and no reserve land has not been expressly included in its approving decision, then the approving authority would be deemed to have irrevocably waived for the purpose of that subdivision application the dedication of the reserve land.

CITY OF EDMONTON POSITION A.

There must be clear power for deferment of reserves and where land for reserves or money in lieu is not taken, it should be understood that reserves are automatically deferred to a future subdivision.

B.

A subsection (3) which was to provide for determining

33.

cash in lieu for reserves after subdivision is missing from the Working Paper.

(38) USE OF RESERVE LAND - SECTION 53 - WORKING PAPER PROPOSAL Defines the use of reserve land for public parks, school sites, recreation areas or buffer strips separating residential from industrial and commercial uses. Any lands used for park or recreation purposes at the time of Planning Act approval would be automatically classed as reserve.

CITY OF EDMONTON POSITION A.

Inasmuch as some non-reserve lands might be used for park or recreation purposes on a temporary basis with an alternate use proposed for the future the municipality should be given the opportunity to exempt such Parcels.

B.

That ownership of reserve lands originally provided for school sites no longer required for school purposes revert to the municipality. Compensation would be paid for improvements.

(39) DISPOSITION OF RESERVE LAND - SECTION 54 - WORKING PAPER PROPOSAL This section is essentially similar to the current legislation but authorizes the Local Authorities Board to rule on disposition of reserves.

CITY OF EDMONTON POSITION A.

That authority for disposition of reserves be given to Municipal Councils within guidelines established by legislation or regulation.

B.

The sections contain no reference to portability of reserves which has proved to be a major problem in relation to the planning practices of the City of Edmonton.

34.

As is often the situation with roadway dedication, the nature and ownership of a developing area may be such that the major concentration of reserve land is required in a location which may very severely affect a single owner. The problem arises as to how to assemble the reserve due from the various subdivisions in a form related to the plan which will ensure the best possible use of those reserves in a manner none the less benefitting the affected subdivisions equally. A possible solution would be to designate reserves generated from one subdivision but required in another as portable reserves which could be moved from one subdivision to the other by simple exchange without the necessity of the complex disposal procedures.

C.

The use of money received in lieu of dedication should be restricted to purchase or development of park lands and not for such other municipal purposes as may be approved.

(40) REPLOTTING SCHEMES - SECTION 55 - WORKING PAPER PROPOSAL That only value replots be allowed and no area replots. In other words, an owner will receive land back in relation to values rather than area, the intent being that everyone in the replot area would share in the increase in value of all land in the area. Also the fixing of allotment, compensation and cost is to be done by Council rather than the Public Utilities Board but subject now to appeal to the Local Authorities Board.

CITY OF EDMONTON POSITION A.

Although the approach recommended in the document appears logical and equitable, the City of Edmonton does have grave reservations on the workability of the value method based on experience over a number of years. It

35.

is strongly recommended that the replot by area approach be maintained.

To support the retention of the "area" method it is deemed worthwhile to give a more thorough explanation.

The replotting scheme by value is initially attractive because it appears to introduce equity to the allocation of land under this system. However, on closer examination, there are certain practical difficulties which preclude their use as a universal method.

The boundaries of a replotting scheme have been notoriously difficult to retain through a negotiation with several owners. Therefore, the approach has been one of authorizing a replotting scheme for a certain area of land and negotiating as far as this has been possible with the owners. For certain reasons, some justifiable, some not, it may be appropriate to adjust the boundaries of the replotting scheme. For example, completing the whole area in two parts. It is often impossible to know the situation at the very beginning and only through the negotiation can this be determined.

Under such circumstances, the whole computation process must begin again to determine the relative values of those land uses contained in the new replotting scheme to the original values of the land areas contained in the new replotting scheme. This would be no problem if the proposed land uses in the original replotting scheme were equally distributed throughout the whole area or that the land uses were the same (all R-1 for example).

However, if the local shopping centre were to be contained in one half or the other half of the scheme as illustrated, the land values would be significantly affected as would the distribution of new values - inasmuch as the ratio of values of new land to old has changed. Therefore, the

36.

equity principle immediately begins to flounder because of the decisions on where the boundaries of the replotting scheme should be. All owners will wish to participate in the replotting scheme which will contain the major commercial centre and not in those schemes which are designed to provide for the housing area - in order that they may gain the spin-off value from the creation of the commercial site.

It is likely that in every value replot the assignment of parcels would require monies to be transferred from one owner to another to balance over and under allocations. Problems would arise if some over-allocated owners did not have ready cash to pay under-allocated owners.

The area method of replot is readily understood and accepted by the vast majority of land owners. Land areas are not subject to interpretation whereas values before and after replot are subjective in nature.

The City has had experience in negotiating one replotting scheme by value and it was woefully unsuccessful. Land dedication was based upon the area of parcels, with the actual allocation being based on the value with the apparent result that the dedication of land without compensation was for some owners very high, whereas for the balance, the dedication was within statutory limitations.

This one attempt resulted in a successful action against the City by a non-consenting owner and required protracted negotiations with the majority of participants in the replotting scheme in order to secure consents. If the value method is the only one available for replotting scheme registration, it is likely that each major developer would do his best to proceed by simple subdivision ignoring the balance of the owners involved. Therefore,

37.

simplified procedures for area replots should be included in the Act. B.

Section 62(1) provides that upon adoption the Council shall forthwith submit the plan for registration. However, Section 64 allows for an appeal to the local Authorities Board within 30 days.

C.

An additional subsection should be added to Section 67 whereby additional awards made by the Local Authorities Board would be chargeable to the participants of a replotting scheme on a pro-rata basis. In addition, implementation of some replots could be advanced if some costs of the replotting scheme could be recovered as a local improvement.

38.

PART III - Land Acquisition and Compensation (41)LAND ACQUISITION FOR PLANNING PURPOSES - SECTION 68 - WORKING PAPER PROPOSAL The intent is to clarify the purposes for which municipalities might acquire land. Derived from the general powers of acquisition and expropriation contained in the Municipal Government Act this section adds the new dimension of acquisition through a conservation restriction. The Provincial Planning Board would be given power to acquire lands for certain facilities or uses.

CITY OF EDMONTON POSITION The City of Edmonton is opposed to the Board being given the power to acquire and hold land since departments of the Provincial Government are more logical vehicles for such purposes.

Related to this matter is the power which some Provincial Departments, especially the Department of the Environment, have in effecting planning policy through land freezes or acquisition. There is need for a more thorough review of the implications or desirability of certain Provincial actions by affected municipal governments and residents. The Board might be used as the vehicle for this review.

(42)CONSERVATION RESTRICTIONS - SECTION 69 - WORKING PAPER PROPOSAL The object of this section is to enable a municipality to buy or expropriate less than a fee simple interest in land in order to further its planning and environmental objectives, e.g., to protect scenic views without outright purchase.

CITY OF EDMONTON POSITION A.

There is opposition to the philosophy of compensation

39.

presented in Sections 69 to 76 wherein it assumes land owners have right of development notwithstanding decisions made by the community for a desired land use pattern and that land owners are therefore entitled to compensation for loss in those rights. Although it is recommended that there be a total indepth review of Part III, additional detailed comments are provided.

B.

With respect to Section 69 there will be considerable difficulty in determining existing and future value and hence the cost of the conservation restriction may approach value by fee simple acquisition. Given adequate resources it would seem much simpler for the municipality to acquire the land and lease it back. There also seems to be some conflict between the zoning power available to a municipality and the conservation restriction; decisions made on use that are based on zoning power might be challenged by land owners on the basis that a conservation restriction is in fact being effected and money must be paid. Authorization for borrowing through the Local Authorities Board requires that money for land purchases be available only when such land is purchased in fee simple

(43)COMPENSATION GENERALLY - SECTION 70 AND 71 - WORKING PAPER PROPOSAL Provides for compensation by a municipality to a developer, where a permit is revoked, for costs incurred to date.

CITY OF EDMONTON POSITION Agreed.

(44)COMPENSATION FOR SPECIAL PRESERVATION ZONES - SECTION 72 WORKING PAPER PROPOSAL In the preamble to Section 72 there is a lengthy discussion

40.

of the conditions under which compensation would be appropriate, focus of this discussion being when and how much compensation is appropriate. For example, Section 76 of the proposed Act and Section 135 of the current Act state "that except as otherwise expressly provided in the Act, no compensation will be payable by virtue of a planning decision".

What the proposed section, Compensation for Special Preservation Zones, is attempting to provide is a bridge between Sections 76 of the proposed Act, 135 of the current Act, and Section 120 (c) of the current Act which requires a municipality to purchase a property that is intended for public use.

It is the objective of Section 72 to obtain public use of private property and to reimburse the owner of the property to the degree that his private interest has been deteriorated.

CITY OF EDMONTON POSITION That the concept of compensating an owner to the degree that his private good has been taken away is an equitable concept.

Where the City of Edmonton would raise doubt regarding the value of this Section is its relation to Section 76 of the proposed Act. For example, down zoning while being in conformity with the requirements of Section 76 may require compensation by a municipality to certain owners as their property's speculative value has been lost to the public good.

While the preamble to the proposed Section acknowledges this problem it does not present a solution. Because of this it is our judgement that the proposed section could have a regressive affect requiring a municipality to pay compensation following a planning decision beyond the Special Preservation Zone, e.g., down zoning in an Area Redevelopment Plan.

Consequently, it is our recommendation that conditions under which a municipality would be expected to pay compensation be more explicitly stated than as general principles presently included or deletion of this section from the proposed Act.

Ll.

(45) COMPENSATION FOR LANDMARK PRESERVATION SITES - SECTION 73 WORKING PAPER PROPOSAL Purpose of this section, Compensation for Landmark Preservation Sites, is to present the mechanisms for implementing a Landmark Preservation Scheme through a bonus system with a cash-in-lieu clause similar to reserve dedications for a subdivision and a transfer of developments rights program.

What this section is attempting to achieve is to compensate an owner of a landmark site insuring the site's retention.

In addition to this overriding objective the section also makes provision for development rights bank to provide income for maintenance and purchase of landmark sites.

CITY OF EDMONTON POSITION A.

One of the key elements in this section is the transfer of development rights from a site with historical merit to an adjoining site "in the same type of zone". It is feared that while the gross density of the combined sites may not be undesirable the form of development on the site to which the density was transferred would be undesirable in such areas as height, bulk, yards and general compatability with the district. It is therefore requested that Section 73 not be included in a new Planning Act.

B.

There is need for guiding legislation so that municipalities could effect preservation of historical sites and buildings which the Province may not consider important enough for Provincial designation. Appropriate amendments to the Alberta Heritage Act are therefore requested.

(46) DETERMINATION OF AMOUNT OF COMPENSATION AND COMPULSORY ACQUISITIONS - SECTIONS 74 - 76 - WORKING PAPER PROPOSAL In instances where agreement cannot be reached on compensation to be given, reference shall be made to the Expropriation Procedures Act. Section 75 provides that where an owner is

42.

denied a reasonably beneficial use of his land, he may initiate proceedings which would lead to the municipality concerned being compelled to buy him out at a price to be set by an independent board. No compensation would be payable by reason of adoption of regional plans, general plan, zoning bylaw, etc.

CITY OF EDMONTON POSITION Great difficulty in defining "reasonable beneficial use" can be anticipated. Conflicts will undoubtedly arise where certain policies contained in general plans and zoning bylaws (hence no compensation) limit the use of land and the owner argues that "reasonably beneficial use" is denied. While land owners must be protected from patently unfair zoning practices, Section 75 as presently worded would increase the cost of sound planning to the municipality. In situations where a municipality may be carrying out zoning practices that are patently unfair, then the system should provide for appeals to the Courts. It is clearly evident that Part III of the document "Towards a new Planning Act for Alberta" was prepared without adequate research. Input by a broad spectrum of people knowledgable in this area is warranted in view of the great implications on the ability of municipal government to effect planning at reasonable cost.

L3.

PART IV - Enforcement (47) AGREEMENTS - SECTION 77 - WORKING PAPER PROPOSAL Although a municipality could enter into an agreement with an owner relative to carrying out any development, this section would invalidate all transactions whereby a municipality is to acquire or acquires benefits in excess of statutory or bylaw maxima, and adds teeth to the sanction by enabling a developer to bring an action to recover any such excesses.

CITY OF EDMONTON POSITION A.

Concurrence with Section 77(1) permitting agreements.

However, the types of restrictions proposed in 72(2) and (3) would rule invalid many elements of the agreements the City now enters into with developers. For example, an additional 5 percent of lands for public purposed at $5,000 an acre (adjusted each year by the interest rate); ravine lands at a price not to exceed $1,000 per acre; land for major transportation rights of way not to exceed $5,000 per acre (and as adjusted); public housing sites sufficient to accommodate up to 5 percent of the population (at fair market value); and, some offsite utility costs to be paid by the developer and recovered by him as additional areas proceed.

Although the authors of the Working Paper indirectly suggest that some municipalities are black-mailing developers, the basic intent of the City of Edmonton has been to see that new areas carry the costs of their development with a minimum of a burden placed on existing (non-benefitting) development. In some instances the clauses have been suggested by the developer; other clauses have arisen through mutual agreement at the

44. time of annexation. Although the City of Edmonton has probably gone further in certain requirements than other Alberta municipalities, agreements involving some municipalities in other Provinces are comparable to those in Edmonton. The primary question is should new development areas pay their own way or should some of their costs be absorbed as a burden by all the taxpayers. The City would take the first position and therefore strongly opposes clauses 77 (2) and (3) as presently worded. If they are approved as proposed all current agreements, it would seem, would be null and void, and action could be taken against the City for recovery. Certainly a chaotic situation would result leading to an immediate halt to development pending resolution of the actions taken. Even if the retroactive element is removed, the burden on the City to develop additional areas could be sufficiently onerous that such developments would not be allowed to proceed. However, if the financial position of the City were to be improved so that inordinate burdens would not be placed on the property taxpayer, the City could alter its current position.

B.

As a general policy, given that municipal decisions create land value, purchases of land for public purpose to serve the development should be related to "cost plus carrying costs" and not fair market value. In addition, if a developer wished to donate such lands because of the benefits accruing to his development, such options should be allowed for.

C.

Where an owner wishes to develop lands which are premature or represent leap-frogging he should be given the opportunity, through agreement, to prepay extra costs and proceed with his development.

(48) ALBERTA PLANNING BOARD - SECTION 78 - WORKING PAPER PROPOSAL This section provides for action to be taken by the Board to

45. exercise power where regional planning commissions and councils have not performed their duties.

CITY OF EDMONTON POSITION Provision should be made for adequate notice to be given to the jurisdiction to be so affected.

(49)ZONING CAVEATS - SECTION 79 - WORKING PAPER PROPOSAL A retention and expansion of a current section providing for zoning caveats to be filed which are effectively interim land use controls pending adoption of zoning bylaws.

CITY OF EDMONTON POSITION Agreed.

(50)RIGHT TO ENTER - SECTION 80 - WORKING PAPER PROPOSAL The section gives authority to enter on private lands to ensure effective enforcement of bylaws.

CITY OF EDMONTON POSITION Agreed.

(51) COMPULSORY SUBDIVISIONS - SECTION 81 - WORKING PAPER PROPOSAL Should a development occur without subdivision approval where required, a municipality could require, at the owner's expense, a proper subdivision to be undertaken.

CITY OF EDMONTON POSITION Agreed.

(52)STOP WORK ORDERS AND ENJOINING WORK OR USE - SECTIONS 82 AND 83 - WORKING PAPER PROPOSAL These sections are designed to enable a breach of the Act or a bylaw passed thereunder, to be halted at as early a stage

146..

as possible so that the situation does not arise where a completed or near completed development should be required to be demolished.

CITY OF EDMONTON POSITION A.

As presently worded only a council could effect the order. If is essential that stop work orders be given as soon as there is knowledge of contravention hence officers of the municipality should be given the right to issue such orders with a right of appeal to Council.

B.

A clause should be added outlining the manner in which orders would be lifted.

C.

That 82(2)(b) requiring that the order contain the steps required to be taken to correct the violation be deleted.

(53) PENALTY - SECTION 84 - WORKING PAPER PROPOSAL The important changes in this section provide for an increase in fines payable (a maximum of $5,000 or 12 months' imprisonment) and an extension on the limitation period for prosecution to five (5) years.

CITY OF EDMONTON POSITION A.

It is agreed that the penalties should be increased from the current level of a maximum of $500 with $20. per day for continuous omission. It should be noted that the higher penalty and a five year time period are in excess of that prescribed by the Summary Convictions Act; a review of these clauses is therefore required.

B.

The proposed subsection 84(2) which provides that continuous acts of contravention shall be deemed to be

L7.

separate offences for each day seems less desirable than the existing penalty clause for each additional day of contravention.

C.

To facilitate enforcement of the more routine violations of bylaws related to planning and development it would be proposed that relevant bylaws contain provision for issuance of offence tickets in lieu of proceeding by summary conviction and prescribing penalties for the various infractions. Such procedure is presently authorized under Section 115 of the Municipal Government Act.

PART V - Appeals and Judicial Review (54) APPEALS OF DECISIONS OF DEVELOPMENT OFFICER/MUNICIPAL PLANNING COMMITTEE: DEVELOPMENT APPEAL BOARD - SECTIONS 85 AND 86 - WORKING PAPER PROPOSAL Significant changes are proposed respecting the Development Appeal Board: a) mandatory for a City Council to appoint a D.A.B. b) c) d)

no city employee or member of council could sit as a member. a quorum of three members. the D.A.B. would appoint its own staff.

Appeals could be lodged from all decisions of a Development Officer under authority of a zoning bylaw.

The D.A.B. decisions would not be based on new policy formulations but rather on policy that Council has already formulated in the form of its planning bylaws and zoning bylaws. Hence, a D.A.B. would only reverse the Development Officer where, in its opinion, the Development Officer erred in applying a bylaw or when it disagrees with any discretionary power which he could have exercised.

CITY OF EDMONTON POSITION A.

The current Act provides for at least one member of Council; up to a majority of the membership can be members of Council. The City of Edmonton has found this procedure effective in interpretation of Council policy not embodied precisely in bylaws. Perhaps as with members of Municipal Planning Committees (Commissions) Council representation, limited to a minority of total representation, could be at the option of City Council.

B.

A quorum should be a majority of the membership.

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C.

Section 86 should contain provision for a Council to set appeal fees.

D.

As in the case of development permits the same opposition to the requirement for notification of "tenants" is expressed and for the same practical reasons.

(55) MUNICIPAL PLANNING APPEAL BOARD - SECTIONS 87 TO 89 WORKING PAPER PROPOSAL It is proposed that a Municipal Planning Appeal Board be established to take over the powers of the current Provincial Planning Board and to which decisions of Development Appeal Boards could be appealled. It shall consist of a Chairman, Vice-Chairman and five other members of which one is a planner and one a lawyer and appointed for five years.

Although the preamble to Section 87 states that the Municipal Planning Appeal Board would hear appeals from a Development Appeal Board and be bound by municipal bylaw to the same extent as a Development Appeal Board these provisions are not contained in the text of Section 87.

CITY OF EDMONTON POSITION Inasmuch as the M.P.A.B. would be bound to the same bylaws as a Development Appeal Board there is no justification to introduce a further level of appeal. To suggest that "such an appeal does not detract from local autonomy, but adds a step in ensuring fairness and propriety of development decisions" (page 60) is incorrect in that it does detract from local autonomy and, secondly, it is argumentive in suggesting that a local D.A.B. would not render decisions in fairness and propriety. There should be no appeals from decisions of the Development Appeal Board except to the Courts.

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(56) PRELIMINARY SUBDIVISION PLAN APPEALS AND FINAL PLAN OF SUBDIVISION APPEALS - SECTIONS 90 AND 91 - WORKING PAPER PROPOSAL Currently tentative subdivision plans can be appealed by the applicant to the Provincial Planning Board. It is proposed that the Municipal Planning Appeal Board have authority for hearing appeals except: a) where a Subdivision Bylaw was approved the appeal would be to the Development Appeal b)

Board; and, appeals on replots would be considered by the Local Authorities Board. Section 91 proposes to establish an appeal opportunity against a refusal to endorse a registerable subdivision plan.

CITY OF EDMONTON POSITION A.

Clarification is needed as whether or not only the applicant can appeal a decision on subdivision. It is deemed desirable to give those affected by a subdivision the right to appeal.

B.

The City has earlier in this report recommended against local subdivision bylaws. These sections should therefore provide for appeals to the M.P.A.B. notwithstanding the existence of a Development Appeal Board.

C.

In a previous section the City made comments respecting the need to tidy up the outline plan, neighbourhood outline plan, plan of subdivision process. As part of that review there should be consideration as to the most appropriate time of appeal and the procedures proposed in Sections 90 and 91.

(57) REPLOT APPEALS - SECTION 92 -

WORKING PAPER PROPOSAL

Appeals on replots respecting redistribution of land, compensation and apportionment of costs would be referred to the

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Local Authorities Board. Currently such appeals are made to the Public Utilities Board.

CITY OF EDMONTON POSITION Agreed.

(58)JUDICIAL REVIEW - SECTION 93 - WORKING PAPER PROPOSAL The present legislation permits an appeal on a question of law or jurisdiction to the Appelate Division of the Supreme Court of Alberta. Given the considerable objections to this procedure (as provided in the preamble to this section in the Working Paper) it is proposed that appeals be lodged with the Trial Division of the Supreme Court of Alberta.

In addition to appeals being lodged from decisions of the Provincial Planning Board, a D.A.B., or a Council sitting in an appeal capacity, appeals could be lodged from decisions of the Public Utilities Board, Local Authorities Board, Regional Planning Commissions, Provincial Planning Directors, Municipal Planning Appeal Board, Municipal Planning Commission and a Development Officer.

The grounds of appeal have been extended to include failing to observe natural justice, making an error in law and basing a decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before the authority.

CITY OF EDMONTON POSITION A.

Appeals to courts should not be expanded to include aspects of planning decisions but continue on matters of law and jurisdiction. If it is deemed by the Court that important planning aspects were not adequately considered the matter should be referred back to the decision making authority for rehearing.

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B.

The proposal as currently worded provides for appeals from decisions at a variety of levels involved in the decision making process. For example, an appeal to the courts could follow a decision of a Development Officer even though an appeal lies to the Development Appeal Board. It is recommended that appeal to the Courts should only be permitted after all other rights of appeal have been lodged.

PART VI - General, Transitional (59) GENERAL, TRANSITIONAL AND CONSEQUENTIAL - SECTIONS 94 AND 95 - WORKING PAPER PROPOSAL These sections deal with some general administrative matters related to the authority of the Lieutenant Governor in Council, annexation orders, community reserve lands held by the Crown and subdivisions effected solely for roads, utilities, pipelines and railways. In addition, house keeping aspects in going from the old Planning Act to the new Act are outlined.

CITY OF EDMONTON POSITION A.

A position has previously been taken that development of Crown lands should be subject to municipal review.

Subdivision of land for utilities, etc., should similiarly be reviewed by the local authority or regional commission notwithstanding that the standards may be different, e.g., reserves need not be taken.

If it is deemed that there is a greater Provincial or Federal interest in permitting such development or subdivision without reference to the Act there should at least be a minimum requirement of formal notification to the affected municipalities.

B.

The six month period to effect changes to a development control bylaw should be extended to one year.

C.

The provision that existing general plans, etc. "would continue in full force and effect insofar as they are not inconsistent with the Act" should be amended to require that such documents be amended in due course and re-adopted by bylaw.