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| Alberta Provincial Court |
The written decision seems to throw into question the future of Ambrose Place, which is nearly 75 per cent complete.
Court of Appeal Justice Frans Slatter rebuked the city for failing to notify the McCauley Community League and other neighbours of the property in the first place.
“It is worth noting how unhelpful it was for the development officer not to give notice of this development permit to the appellant and other interested parties” Slatter wrote on behalf of a three-judge panel.
“It was well known that this was a controversial development that was opposed by some people. The failure to give notice created great uncertainty on this file.”
The McCauley Community League filed the appeal against the city, the Subdivision and Development Appeal Board and Niginan Housing Ventures, which is building Ambrose Place at 96th Street and 106th Avenue. The sides presented their arguments Feb. 29.
Tuesday’s ruling showed the case is a tangle of complicated issues.
Because the development officer did not believe the complex to be a special use requiring rezoning — there was a proposed medical component for addiction treatment in the building — rules requiring the city to alert the community of the project and their right to object, were never triggered.
Another critical issue is whether the development permit for Ambrose Place, issued in May 2008, was valid. Typically, builders have one year to start construction on a project. If construction does not start, the permit expires and the developer has to apply for a new permit.
In Tuesday’s ruling, the court agreed that the development permit expired in May 2009, one year after it was issued.
Construction on Ambrose Place did not start, however, until the fall of 2010. The ruling indicates no new development permit was issued. Despite that, the project received a permit from the city in December 2010 to pour a foundation and construction continued through 2011.
The community league tried to plead its case to the Subdivision and Development Appeal board in January 2011, but that quasi-judicial board that helps govern land use matters in the city decided the league was too late to appeal.
On Tuesday, McCauley Community League president Rob Stack described the situation as a “big mess.” The community objected to the proposal in part because they do not believe it complies with the neighbourhood plan and also because they believe McCauley is targeted too often to be the site of social service programs.
Stack said was bizarre and frustrating that construction was allowed to proceed while its future was being considered in court.
“Part of me would like to see this thing ripped out, bulldozed and taken to the ground,” Stack said. “Obviously, it’s been built with millions of dollars in public money and it’s already there. I think we probably need to work with the funders and come up with something that the community will accept and create a viable use for this that will truly enhance the neighbourhood and all the real stakeholders in the area can be happy with.”
Jeremy Taitinger, a lawyer with the firm representing Niginan Housing Ventures, said Tuesday they are reviewing the decision and considering its impact. “We continue to be of the view that this is a good project, it’s good for the city and the community,” he said.
A spokesman for the city said the planning department would not comment on the ruling. Likewise, Gary Dyck, a spokesman with the city’s corporate communications branch, said the city’s Subdivision and Development Appeals Board could not comment on this particular case.
But Coun. Jane Batty, who represents the McCauley neighbourhood on council, said she was happy to learn the community league won its case.
“They have about 45 or 50 social agencies in place, and one of the challenges for them is they don’t want to add more social agencies into the community,” Batty said.
“Without a doubt, the city needs to have a facility like (Ambrose Place), but not in the community of McCauley.”
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