A motion presented to Rocky View County (RVC) council requesting the County waive court-awarded costs of $47,000 sparked a heated debate among councillors at the meeting on Nov. 26.
The awarded costs were the result of two judicial reviews filed by two Springbank residents – Doug Bulger and Nancy Desai - with the support of the Springbank Community Planning Association (SCPA) on Oct. 22 and Dec. 20 last year.
The judicial reviews challenged council’s fairness of process during the public hearings held earlier in 2012 that resulted in council amending the North Springbank Area Structure Plan and changing the land use bylaw to approve the Bingham Crossing development - a commercial and seniors housing project roughly 80 acres in size located kitty corner to Calaway Park.
The Court of Queen’s Bench judges who presided over the cases ruled in favour of the County, rendering their decisions on Aug. 29 and Oct. 22, dismissing claims of unfairness and awarding costs to the County.
According to a RVC report, the County incurred $150,000 defending themselves in the process but agreed upon a payment of $47,000 with the applicants.
“If we are served with a statement of claim, our automatic process is to defend ourselves. Whenever we incur costs, we would ask for costs in return,” said Kent Robinson, manager of corporate services with RVC.
Springbank-area Councillor Jerry Arshinoff presented a notice of motion to council on Nov. 5, and he asked councillors to waive the fees on Nov. 26 when administration presented a report on the issue.
“The applicants (of the judicial review) were not seeking monetary gain. There was no money for them to make. They also didn’t ask for the decision to be overturned. Rather they were unhappy with the process and the fairness of the public hearing and they were asking for the public hearing to be redone,” said Arshinoff.
“We can vote to not waive the costs and in doing so we are essentially telling the great majority of Springbank residents, ‘we have no interest in your efforts, we have no interest in your concerns, don’t bother us.’ Or in other words’, we don’t give a damn what you think, go to hell,’” he said.
Bearspaw Councillor Al Sacuta supported his plea. He said he thinks the Municipal Government Act (MGA) “stacks the deck heavily in favour of developers” and leaves little to no avenue for residents to appeal a decision.
“These people and corporations (developers) are just suppliers to us. They’re not our stakeholders or our customers. Residents are. Any developer who doesn’t like a council decision can keep applying until they get the answer they want,” said Sacuta.
But, the MGA only allows residents limited technical grounds to appeal a council decision, which is done on the residents’ dime, he said.
Bulger, Desai and the SCPA appealed Bingham Crossing’s development permit with the County’s Subdivision and Appeal Board in May, but the board found the appeal to not have standing. A development permit for stripping and grading of the project site was issued in July.
Councillor Lois Habberfield said she would not support waiving the court awarded costs.
“We can not say that council is wrong, the appeal board is wrong and two judges are wrong. Enough is enough. I think if you take on a judicial review, you are responsible for the costs. If you lose and have to pay the costs, that’s part of the court process,” she said.
Habberfield said if the costs were waived, the onus to repay the County’s legal bill falls on the backs of general taxpayers.
“The good news is that anybody who feels strongly this (the judicial review) was the only reasonable way to handle this, those taxpayers can voluntarily make a donation to the fund to help the SCPA out,” Habberfield said.
Councillor Greg Boehlke said he agreed with Habberfield.
“I think if we give costs to people who take a run at RVC every time they get a decision they’re unhappy with, it’ll open the flood gates because people will figure the County will pay for it anyway,” said Boehlke.
“Let’s quit looking in the rearview mirror and move ahead. This has gone far enough,” he said.
In a 5-4 vote, council decided not to waive the court costs. Councillors Margaret Bahcheli, Liz Breakey, Sacuta and Arshinoff voted in favour of waiving the costs.
SCPA Resource Director Gloria Wilkinson said the SCPA has raised $150,000 to date through donations and an online auction to cover their $200,000 legal bill. She said the court ordered the awarded costs be paid by Nov. 29, which the group has done.
Wilkinson said although the SCPA did not request the County waive the fees – the local councillor did – she was “disappointed” with council’s vote.
“There’s no next step. There’s nothing left under the MGA that we can do. We’ve tried to get council, the appeal board, the courts to see our side. Talk about being slammed from all sides. We have to be done now,” said Wilkinson.
Robinson said the remaining costs the County incurred through the process is covered in the County’s budget for yearly legal costs.
The developers for Bingham Crossing also participated in the judicial reviews after applying to be a named party in the case.
Ron Renaud, the developer with Rencour Developments Inc., said the company wanted to be able to defend their position in the review process. He added the judge awarded $80,000 to the developers in costs for the first judicial review.
“We waived all those costs except about $15,000. We want to be good neighbours. We’re going to be here for the long run,” said Renaud.
He added the awarded costs for the second review have not been rendered to the developer, but he said the company plans to waive all of those awarded costs.
