Warning: As a result of further Ministerial Orders issued by the Minister of Municipal Affairs, this Article is no longer current and should not be relied upon. An updated article reflecting the most current information can be found here.

By Alifeyah Gulamhusein, Derek King, Jeneane Grundberg, and Michael Solowan

Please note that answers to specific questions posed to our office are provided as of April 3, 2020.  The situation is rapidly changing, and Ministerial Orders may have been amended, or new ones issued, since the drafting of these responses.

1.  What powers are granted to a municipality in regards to land use when a state of local emergency is called?

Typically, other than in specific relation to the emergency and the response to it, a state of local emergency (SOLE) does not grant the municipality any broad powers to modify or suspend the planning regime or requirements of the Bylaw.

In the context of responding to the emergency, the Director of Emergency Management (DEM) can order that lands and structures be put to uses that are contrary to existing Development Permits, contrary to the LUB or which in other circumstances would require an application pursuant to sections 24(1)(b) and 19(1)(c), (d) and (g) of the Emergency Management Act.

2.  Does a state of local emergency render local bylaws such as the land use bylaw null and void when a municipality makes decisions?

The SOLE does not render local bylaws, including the LUB, null and void generally, but as described above, the DEM can issue Orders that may be contrary to a bylaw, if done in good faith for the specific purpose of addressing the emergency and its impacts.  More typically though, the DEM will seek an amendment of a bylaw by Council if required.

By way of example, the DEM can authorize the use of a structure for a purpose that may be contrary to the zoning or a development permit issued for that structure, if the use is connected to the emergency or the emergency response.

3. What latitude does a state of local emergency give a Development Officer when they are faced with issuing waivers or approving a use that is not allowed in a land use district?

None.  The Development Authority is not vested with any different authority with respect to waiving requirements (of the LUB or an Approval), or approving a use that is not allowed within a land use district. As noted above, the DEM can cause lands or structures to be put to uses that are not allowed in the district, but the DEM does not require development approval to do so.

4. If a development permit or subdivision approval is granted now, does the municipality advise the developer that the appeal period is extended until October 1, 2020?  Should the municipality be cautioning developers to not proceed under a development permit or subdivision approval, and they cannot commence construction or the use until that date (unless it is understood it would be done entirely at their own risk)?

 At present, we suggest that municipalities hold off on issuing development permits and subdivision approvals as there may be changes to MO 022/20 that may impact appeal timelines.  If you are issuing these approvals, notice of issuance should include a reference that the timeline to file an appeal to the SDAB/MGB is October 1, 2020 and depending on your LUB, the filing of an appeal may act to suspend issuance of the approval. 

 5.  Are you saying hold off on issuing Development Permits for Discretionary Uses or variances only?  Not Permitted Uses though?

We recommend municipalities delay the issue of all development permits in light of anticipated amendments to MO 022/20.  If municipalities issue development permits before the anticipated amendment, the appeal information in the permit’s notice of issuance may be incorrect. 

6. Will a subdivision applicant be unable to finalize a recent or upcoming subdivision approval, and have the municipality/Subdivision Authority endorse it for registration at Land Titles prior to October 1, 2020, as the deadline to file a subdivision appeal would technically be open until October 1, 2020?  

Municipalities may endorse and register plans of subdivision but there is a risk to the developer because at present the appeal period has been extended to October 1, 2020. The extended appeal period may mean the Registrar may not register the plan. 

7. Recognizing that the timelines in Section 686 have been extended to October 1, 2020 are there process options, or recommendations with respect to the issuance of development decision that involve discretionary use(s), and/or a variance? 

Municipalities can proceed with issuance of development permits, but at present the appeal period has been extended to October 1, 2020.  As such, developers may not want to proceed with development in light of a possible appeal.  Most municipal land use bylaws state that the filing of an appeal to the SDAB/MGB acts to suspend issuance. Therefore, any work undertaken before the appeal period expires is at the developer’s risk.

8. Does the MO 022/20 extend the time for responding under s 653.1(1) (the section that says you have to determine if an application for subdivision approval is complete in 20 days)?   

Yes.  You can deem a subdivision application complete at any time after an application is submitted up to October 1, 2020.

9. The deadlines for filing appeals on development permits (s 686) was also extended to October 1.  Doesn’t that put any development permit issued from now until October 1 at risk of being appealed for months instead of the usual 21 days?    

Yes.  If a permit was issued and the appeal period did not expire before March 25, 2020 (when MO 022/20 was issued), then the appeal period has been extended to October 1, 2020.

10. Does anything in this Ministerial Order (or others) remove the responsibility for the municipality to advertise Public Hearings?

No.  Municipalities are still required to advertise public hearings but if the public hearing is going to be held pursuant to the Meeting Procedures (Covid-19 Suppression) Regulation, the notice must state the electronic means by which the meeting is to be held and give the information necessary for the public to access the meeting.

11. The Municipal Planning Commission meets two times a month, the first and third Wednesday of every month.  Is advertising the meeting on the municipality’s website sufficient enough and how do we deal with the public not being allowed to attend?

Notice of a council or council committee meeting (including an MPC) must be given to the public in a manner specified by council. If council is satisfied that advertising the meeting on the City website is appropriate then council may direct that notice be given in this manner; however, the Meeting Procedures (Covid-19 Suppression) Regulation requires the public notice of the meeting to state the electronic means by which the meeting is to be held (e.g. teleconference or live, publicly streamed broadcast) and give the information necessary for the public to access the meeting (e.g. teleconference dial in instructions or website address). 

The Meeting Procedures (Covid-19 Suppression) Regulation allows an MPC meeting to proceed by electronic means, provided that: (a) members of the public are able to hear the meeting as it occurs, and (b) any members of the public who would be entitled to make submissions at the meeting if the meeting were being held in person are able, before and during the meeting, to make submissions by email or any other method that the MPC considers appropriate. An MPC may restrict or suspend electronic access to the meeting in order to deliberate and make its decision in a meeting closed to the public. 

12. Can a municipality choose a different appeal deadline (for appeals to the SDAB/MGB following issuance of a development permit or subdivision approval) that is earlier than October 1st?

No.  The Minister has the authority pursuant to section 605 of the MGA to issue an order altering dates and time periods.

13. During a public hearing will municipalities need to, as an example: make the call asking for members of the public to indicate if they are in favour of the bylaw, then allow time (15 minutes) for people to email comments; then make the call for those opposed, and allow time (15 minutes) for people to email comments; and then call for anyone else who would like to make comments, allow time for emails again.  OR can we simply make the call for anyone who has comments in favour of, against, or otherwise affected to submit them at the start of the public hearing, provide them with 30 minutes, and then read them all in once the time is up?

The Meeting Procedures (Covid-19 Suppression) Regulation does not mandate how Council conducts its public hearing.  It allows Council to accept submissions by email or by any other method that the Council considers appropriate.  Council may want to provide that any written submissions must be emailed to the municipality in advance of the public hearing so they can be posted and available for the public to view and limit the public hearing to telephone (oral) submissions.  Additionally, Council may be able to ask participants to identify their desire to participate and their position (for or against) in advance of the public hearing so Council can call upon participants in an orderly fashion.  Council can determine the procedure and it may be impacted by the technology that is available.   

14. To ensure municipalities meet all legislative requirements, is it best to hold all SDAB appeals as close to October 1?

We suggest that scheduling of SDAB hearings not occur until any amendments to MO 022/20 are issued. 

15. Since s. 606(2) refers to notification for public hearings, does this mean that no public hearings may be held until after Oct. 1?

No, public hearings can be held in accordance with the MGA and may be held electronically in accordance with the Meeting Procedures (Covid-19 Suppression) Regulation.  Notice requirements for public hearings are unchanged.

16. Is there any direction on sending out adjacent letters?

As noted above, we suggest municipalities refrain from issuing any development permits and subdivision approvals at this time until any amendments to MO 022/20 are issued.

17. If an SDAB Hearing commenced before the amendments were passed, do these extended timelines apply or would the Board still be required to issue a written Decision within 15 days?

Yes, the extended timelines for issuance of the SDAB’s decision apply.

18. What if an Appeal Hearing is held and then a month later another appeal is filed?

Under the current circumstances, we recommend that no SDAB appeal hearing be conducted until the timeline to file the appeal has expired.  As a result of MO 022/20, the timeline (14 days or 21 days) has been extended to October 1, 2020. 

19.  Does this mean that the time for responding under s 653.1(1) (the section that says you have to determine if an application is complete in 20 days) from the time specified in the section to October 1?  

MO 022/20 means that the requirement to determine whether an application is complete has been extended form 20 days to October 1, 2020.  However, even though the timeline has been extended, a municipality may wish to ensure that a notice of completeness is issued well before October 1, 2020.

Questions?

Should you have any questions with respect to this bulletin, or if you would like more detailed information, please contact the following members of the Brownlee LLP Municipal Team: 

 Alifeyah Gulamhusein: 780-497-4877, agulamhusein@brownleelaw.com

 Derek King: 403-260-1472 dking@brownleelaw.com

Jeneane Grundberg: 780-497-4812 jgrundberg@brownleelaw.com

Michael Solowan: 780-497-4893 msolowan@brownleelaw.com