Bill 28 proposes to curtail municipal authority over planning and development

In recent years, municipalities have been exploring and implementing efforts to require or encourage green planning and development.  These efforts may include building development standards which impose or encourage energy efficiency requirements above and beyond standard building codes, increased density, and other approaches to address climate, energy and biodiversity aspects of development.  These efforts have been taken within the bounds of the Municipal Government Act(MGA) which sets municipal jurisdiction.

Bill 28  proposes several amendments to the MGA which will enable the provincial government to direct municipal planning and development decisions.  This may curtail or have a chilling effect on opportunities for green planning and development decisions.  This includes amendments imposing provincial community design codes which may override municipal planning and development decisions.

It is noted that there are also amendments proposed by Bill 28 which impact gravel pit regulation and are discussed in a separate blog post.

Municipalities and Environmental Decision-Making

Municipalities derive their jurisdiction from the Municipal Government Act(MGA) and have jurisdiction over matters with environmental impacts.  The legislated purposes of a municipality include (MGA S. 3):

• provide good government,
• foster the well-being of the environment,
• provide services, facilities and other things that … are necessary or desirable for all or a part of the municipality, and
• develop and maintain safe and viable communities.

Except to the extent that there are limitations imposed by the MGA or other legislation, a municipality has natural person powers which allows it to handle day-to-day operational matters including the ownership and management of land (MGA s. 6).  As well, a municipality has the “direction, control and management of bodies of water within the municipality” (MGA s. 60).

Municipalities also have authority to make bylaws for municipal purposes including those to address the safety, health and welfare of people and the protection of people and property; nuisances; and wild and domestic animals (MGA s. 7). The cities of Edmonton and Calgary have additional bylaw powers to address specific environmental matters including contaminated sites; climate change adaptation and greenhouse gas emission reduction; protection of biodiversity and habitat; conservation and efficient use of energy; and waste reduction, diversion, recycling and management (City of Edmonton Charter s. 4 and City of Calgary Charter s. 4). Bylaws may establish a regulatory system that include licenses, permits or approvals.

Under Part 17 of the MGA, municipalities also have authority to make decisions regarding municipal planning and development.  This includes the development of a land-use bylaw which sets out land use zones and development permit processes (the MGA requires development of a land-use bylaw) and the development of planning documents such as a Municipal Development Plan (some planning documents are required by the MGA whereas others are optional).  As part of the subdivision process, the municipality may require the dedication of conservation or environmental reserves.  Through its planning and development decisions, a municipality has significant influence over the use of private lands within the municipality.

For more information on municipalities and the environment, see the Community Conserve website, which is a collaboration between the ELC, Miistakis Institute, Alberta Municipalities and Rural Municipalities of Alberta.

What changes are proposed by Bill 28?

Bill 28 was introduced on April 2^nd to amend the MGA, Libraries Act and Alberta Housing Act to address 5 themes: growth and housing; assessment and property tax; governance and accountability; municipal transparency; and public institutions (see the Bill 28 Information Guide).  Several amendments to the MGA are proposed in Bill 28 including some related to the transfer of municipal public utilities, municipal viability reviews, a councillor accountability framework, publication of municipal employee compensation, charter schools, and vacancy -tax assessments. However, in this blog, we will only be discussing the proposed amendments that have more direct environmental implications (except for those related to gravel pits which are discussed in a separate blog post.

What are the environmental implications of Bill 28?

In recent years, municipalities have been exploring and implementing efforts to require or encourage green development.  These efforts may include green development standards which impose or encourage energy efficiency requirements above and beyond standard building codes, increased density of developments and other measures designed  to address climate, energy and biodiversity aspects of development. Municipal planning and development decisions have direct implications in areas of climate change mitigation and adaptation, biodiversity, and hydrological and watershed health.   

The amendments proposed by Bill 28 may serve to limit these municipal approaches to planning and development.  For instance, the amendment disallowing the use of off-site levies to cover capital costs incurred to build to a higher standard than those under the applicable building codes (new subsection 648(2.11) MGA) seems directly aimed at green development standards.  An off-site levy is imposed on developers to recover the costs of municipal infrastructure incurred by new developments.  This infrastructure can include things like sewage facilities, water systems, roads, and municipal buildings such as community recreation centres, fire halls, police stations and libraries.  With the proposed amendment, if a municipality makes the forward-looking decision to require higher (greener) development standards for its municipal buildings, that cost cannot be recovered via an off-site levy.  This is beneficial to developers but will mean municipalities (and therefore taxpayers) bear more costs as the capital costs of greener buildings cannot be recovered with an off-site levy, or less energy efficient buildings will be built (which is also more costly in the long-term).

There are also significant proposed changes to municipal control over planning and development more generally.  This includes the potential to require automated development permit decisions be made by a municipality, as well as regulations that dictate processes, timelines or other requirements for issuing development permits (or notice of denial) and the documents and information that may be required for a development permit application.  Regulations may also be used to modify planning and development requirements in Part 17 of the MGA.

Another significant change is the proposed new provincial authority to impose community design codes. The Minister may, by order, require a municipality to pass a bylaw adopting a community design code for all or part of a municipality. A community design code may:

• Create rules regulating aspects of land use and development in all or part of a municipality including architectural styles; districting; frontage standards and heights; historical architectural styles; landscaping, parks and open spaces; or parking and street design.
• Establish alternative criteria and timelines for subdivision and development approvals in those parts of a municipality where the community design code has been adopted.

Unless otherwise provided, it is proposed that the community design code operates despite any statutory plan, land use bylaw or other regulations under Part 17 of the MGA.  A community design code will be binding on subdivision authorities, development authorities, subdivision and development appeal boards, and the Land and Property Rights Tribunal.  In other words, the province may choose to override existing municipal plans and bylaws to control planning and development decisions within part or all of a municipality.  Again, this could have significant repercussions on municipal efforts for greener communities by limiting housing density, mixed-use developments, green development standards, and similar measures.

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