The proposed Bingham Crossing Costco development in Springbank went before Rocky View County’s (RVC) Subdivision and Development Appeal Board (SDAB) on March 30, but no final decision on development approval will be made before May.
Both RVC administration, as the development authority, and two appellants, Denise Dancey and Jeffrey Tooth, both of Springbank, had an opportunity to state their cases for and against the proposed development to SDAB vice chair Robert Doherty, (who acted as chair of the meeting), and board members Kerry Hubbauer, Dharminder Premi, Moire Dunn, and Nick Wiebe.
The County granted conditional approval of the development permit back in February, and Dancey and Tooth were appealing that approval.
RVC lawyer Kelley Fiske-Neilsen, of Brownlee LLP, outlined in her opening remarks what the hearing was about at heart: whether or not County administration followed the direction and intent of council in its interpretation of the bylaws before granting a development permit to Costco at Bingham Crossing.
Fiske-Neilsen argued RVC administration had done so.
“Only if, and only to the extent that the board finds the municipality did not follow the council’s direction – and we submit that is not the case, that they have actually been followed – could the board then, and only in accordance with the direction of council, substitute the board’s own decision for the municipality’s decision,” Fiske-Neilsen stated.
According to Fiske-Neilsen, while the approval of a Costco at the Bingham Crossing site in Springbank did not accord to the council-approved Conceptual Scheme, (which called for an urban village model with a small grocery retailer and other specialty shops as well as a seniors’ residence in Bingham Crossing’s Phase 2 design) she argued the conceptual scheme is not actually statutory.
Further, she argued only the underlying land use designation of Direct Control District (DCD) was pertinent to SDAB’s considerations, and a Costco store and gas station were certainly a permitted use under such a designation. By referencing the DCD designation, Fiske-Neilsen asserted RVC staff had conformed to the direction of council for the proposed site.
In this respect, she argued the SDAB had no authority to overturn the decision of RVC’s development officers as they had “proposively conformed” to the intent of council.
“The board does not have broader authority than the development officer in the case of Direct Control District, and the board cannot just assume the role of the development authority and alter the development officer’s decision,” she said. “The board has first to identify where and how the development officer failed to follow council’s direction under the applicable DCD.”
After Fiske-Neilsen stated her case to the SDAB, it was the turn of the two appellants, and other local residents directly impacted by the proposed development in Springbank, to make their cases.
Tooth felt Fiske-Neilsen’s argument, that RVC staff could simply disregard a Conceptual Scheme at Bingham Crossing approved by council, and vetted and approved by nearby community members, was absurd.
“I think it is pretty clear Costco does not follow council’s direction,” he argued. “It doesn’t follow it on any number of points, and it certainly doesn’t follow it on the spirit and intent of council’s direction.”
Tooth suggested if staff had difficulty interpreting the will of council, or its approved plans for Bingham Crossing as outlined in the Conceptual Scheme, it might be better just to send the whole case back to them in a public hearing and let the councillors explain their intent for themselves. That way, staff would not be allowed to “cherry pick” what it likes or dislikes about council’s plans when deciding on a development permit.
“Council provides directions for bylaws, it approves policies to govern the land, it uses land uses specific, including land uses in the Direct Control area,” he argued. “(A Costco warehouse) is just not an approved use (at Bingham Crossing). It just isn’t.”
Fellow appellant, Dancey, agreed wholeheartedly with Tooth, adding that County policies were put in place for a reason and those rules are meant to be followed.
“We don’t have policies to just, ‘well, maybe,’ or ‘sort of,’” she said. “Hours and hours of work went into developing concept schemes, master site development plans, [and] I don’t think it’s okay to tweak them suddenly on a whim.”
Former RVC councillor Kim Magnussen also spoke at the SDAB hearing on March 30 in opposition to the proposed Costco development. Magnussen said if SDAB members wanted some insight into what a local elected official intends when approving a conceptual design scheme, she was happy to provide some insight from her own experience.
“That they are not statutory plans does not matter,” she argued. “They work together with the land use bylaw, the County plan, the County standards, the area structure plan, and the DC bylaw …
“The conceptual scheme can only be (substantially) changed or amended if the developer comes back (to council) for a public hearing. That’s the only way it can be changed.”
Springbank Community Association vice-chair and director of planning, Al Schmidt, agreed. He said his organization has no official opinion one way or another about the proposed Bingham Crossing Costco, but suggested RVC administration had not met the standard for public consultation prior to issuing its conditional development permit.
“To date, the plans submitted by the applicant do not comply with council’s directive for (Bingham Crossing),” he argued. “That is obvious based on (52) conditions prior to approval. It would have been our strong preference to have had this file adjourned or tabled, left open, as opposed to having the board render a decision until such time as those prior-to-release conditions have been satisfied.”
After hearing these arguments, as well as from other members of the public on the issue on March 30, SDAB members moved to adjourn the meeting to give administration and the applicant (Costco) time to mull over a series of documents submitted by the appellants on the issue.
RVC staff and Costco have been given until April 26 to consider and submit a rebuttal. And the SDAB agreed to give the appellants until May 1 to consider those rebuttal arguments and prepare their own counter-arguments.
SDAB's vice-chair Doherty then informed all present that the SDAB would continue the hearing (on whether or not to approve the development permit for the proposed Costco) in mid-May, with the applicant being allowed to present their arguments, and all sides being allowed to make their final arguments, at that time.
