BOARD ORDER: MGB 087/04 FILE: S04/ATHA/T-017 IN THE MATTER OF THE

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BOARD ORDER: MGB 087/04

FILE: S04/ATHA/T-017



IN THE MATTER OF THE Municipal Government Act being Chapter M-26 of the Revised
Statutes of Alberta 2000 (Act).

AND IN THE MATTER OF A SUBDIVISION APPEAL lodged by Werner Jappsen
Architect Ltd. on behalf of Whispering Valley Golf Course Ltd. (the Appellant).

BEFORE:

Members

J. Acker, Presiding Officer
W. Morgan, Member
D. Thomas, Member

Secretariat

M. d’Alquen
A. Yaremchuk

This is an appeal to the Municipal Government Board (MGB) from a decision of the Town of
Athabasca Subdivision Authority (SA), respecting the proposed subdivision of the Hudson Bay
Reserve and North East Section 16 Township 66 Range 22 West of the 4
th
Meridian.

Upon notice being given to the interested parties, a hearing was held in the City of Edmonton, in
the Province of Alberta, on July 7, 2004.

JURISDICTION OF THE MGB

This appeal is before the MGB instead of the Town of Athabasca Subdivision and Development
Appeal Board, because the Crown has claimed ownership, pursuant to section 3 of the Public
Lands Act, to the permanent and naturally occurring bed and shore of the Tawatinaw River
located adjacent to the subject property.

Section 678(2)(a) of the Act authorizes appeals to be lodged with the MGB when the proposed
subdivision is within the distance of a body of water set out in the Subdivision and Development
Regulation 43/2002 (Regulation). Section 5(5)(e) of the Regulation sets the distance as adjacent
to the bed and shore of a river, stream, watercourse, lake or other body of water.

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PRELIMINARY ISSUE

The Appellant submitted certain material related to a development agreement between the parties
and requested the assistance of the MGB to expedite that agreement. The SA replied that the
MGB has no authority to expedite contracts or other agreements between Appellant and statutory
authorities; moreover, it said the agreement is not relevant to the issue of site suitability under
section 654(1) of the Act, which was the ground upon which the SA refused the application, and
the ground of appeal.

Decision on Preliminary Issue

The main issue in this appeal is whether the lands are suitable for the intended purposes of the
proposed subdivision. This issue may entail considerations such as the physical characteristics of
the land in question and certain economic matters. Unlike the expert witnesses, engineering
reports and other similar evidence anticipated to help the MGB with these matters, the
development agreement does not appear relevant. The MGB encouraged the parties to introduce
evidence relevant to the issues under appeal, and indicated it would deal with objections to the
evidence as matters were raised.

PROPOSAL

The proposal is to subdivide an area of approximately 296.2 acres into two titles including a
common area by way of a Bare Land Condominium Plan. One title will be used for residential

development and is approximately 137.6 acres in size. The other title is for the future golf course
and is approximately 158.6 acres in size.

OVERVIEW

The proposed subdivision is located on a river bank and the key issue in dispute is the whether or
not the bank is sufficiently stable to conclude that the site is suitable for the proposed residential
and recreational uses. The SA contends that instability renders the site unsuitable for the
intended purposes of the subdivision application, while the Appellant takes the opposite position.

BACKGROUND

The subject property is located in the eastern part of the Town including lands within the
Tawatinaw Valley immediately east of the downtown core. The area extends from 39 Avenue to
50 Avenue and from 34 Street to 47 Street in the Town. The quarter section remains largely
unsubdivided with the exception of a couple of small subdivisions and a road plan to the west.

The subject property is situated south of the confluence of the Athabasca and Tawatinaw Rivers.
The Tawatinaw River runs north and south, dividing the subject site. The subject site also
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extends from the top of the Tawatinaw River Valley on the west side of the river and old
Highway 2, to the top of the east side of the Tawatinaw River Valley, and includes substantial
“table land” above the River Valley on the east side.

The uplands to the east are partially developed. Some development has also occurred in the
northern portion of the area, but the remainder continues in its natural state. Developments
include a residential subdivision and a recreational area located across the road to the west and
along the crest of the valley or along the valley side. Subdivision development has taken place to
the north of the area, where previous investigation did not find indications of recent slope
movements. There were no external signs of distress on foundation walls.

A railroad runs along the east side of the Tawatinaw River and is now used as a portion of the
Trans Canada Trail. Portions of the property have been cleared, the adjacent upland areas are
being actively farmed, and there is a farmyard near the centre of the site. There are also trails
leading to the farm and east of the railroad. Landslides are visible from an aerial view, and are
located along the eastern slope of the valley and along the slope in the southwest corner of the
subject property.

Topography


The terrain is generally elongated ridges or blocks that are sub parallel along the slopes of the
valley. There are several water ponds on the upslope sides of the block. Bedrock deposits
consisting of shale, sandy shale, sandstone, coal and bentonite are identified along the Athabasca
River, Muskeg Creek, and along the west side of the Tawatinaw River. Vegetation is lush with
aspen and balsam poplar, black spruce, willow and alder forming a dense growth.

Statutory Plans


The Town’s Municipal Development Plan (MDP) designates the area proposed for development
as partly “Natural” and partly “Residential”. The map attached to the MDP shows the proposed
golf course falling into the “Natural” district and the proposed residential development in the
“Residential” district.

The objectives of the Natural designation include prevention of erosion and other topographical
problems as a result of development. In addition, the MDP’s Policies relating to Natural Areas
state that:
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• only recreational developments will be allowed in the Natural Areas;
• development adjacent to the Tawatinaw Valley requires “topographical and geotechnical
consideration”;
• the Valley and its walls require preservation; and
• restrictions on development adjacent to the top of the valley must be required to limit the
hazard for development.

The stated goal of the Residential designation is to allow for residential growth and to provide a
mixture of housing types affordable to all kinds of households in an orderly and efficient
manner. Among the MDP’s policies under Residential Development is one to encourage private
developers to participate in residential development.

Land Use Bylaws
(LUB)

The current LUB designates the following districts within the site: Institutional (I), Urban
Reserve (UR), Residential (Single-Family) (R-2), and Residential (Estate Development, Not
Serviced) (R-4). The proposed residential development falls within the R-2 and R-4 districts.
One and two family dwellings on approved sites are permitted uses on lots of various sizes
within the R-2 district. One family dwellings on lots ranging in size from one acre to three acres
are permitted in the R-4 district.

The proposed golf course is partly within the I district and partly within the UR district.
“Recreational” uses are listed as discretionary uses within the I district. While such uses are not
defined, it could be considered to include golf courses. Recreation is not listed explicitly as a use
within the UR district; however, the SA, using some discretion, could allow for a golf course.
The current LUB contains no overriding conditions that can be attached to permitted uses to
enhance slope stability.

The Town Council has given first reading to a redistricting bylaw that, if passed, would re-
designate the entire development site as a “Natural” district. Such a change under the proposed
bylaw would prevent construction of non-temporary buildings other than fences.

Slopes


The valley slopes in the Athabasca area are similar to many throughout western Canada. As a
result of the Cretaceous age there is the presence of soft clay shale bedrock, which has been
subjected to consolidation by continental ice sheets and subsequent pressure release by
deglaciation and valley erosion. Weathering and groundwater processes have affected the
strength properties in the slopes. In order to increase the stability of the slopes most major
municipalities in western Canada have established, or are in the process of formulating, safety
features to ensure future stability for development, or are prohibiting development altogether.
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The east side of the Tawatinaw Valley near the confluence of the Tawatinaw and Athabasca
rivers rises from an approximate elevation of 511 meters to approximately 601 meters over a
distance of 900 meters. Average slopes vary from 10% to 17% (5.7° to 9.6°) with maximum
slope angles locally approaching 50% (27°). Average slopes tend to be steeper in the southern
portion of the area.

The slopes in the undeveloped area of the valley do not show any recent characteristics of slope
instability. However, the lands along the Athabasca River immediately north of this subdivision
appear unstable and movements have been reported and are presently occurring within the slopes
of the highways structures. Alberta Transportation (AT) is monitoring these movements.

Failures


Two distinct types of failure occur in slopes characterized by glaciated terrain overlying
cretaceous shales. The most difficult to control is deep-seated lateral or sideways movement. The
second type is a shallower rotational movement, which can usually be prevented or controlled.

Deep-seated movements along the Tawatinaw Valley resulted from the release of stresses caused
by the erosion of the valley by glacial melt water. Slippage occurs at or below the valley bottom
with near horizontal movement. As the primary cause of movement is the removal of support at
the toe of the slope by an eroding stream, the main practical method of preventing or controlling
deep-seated movements is to prevent erosion of toe support and increase the stabilizing load at
the toe – e.g. by disposing of excavated material along the bottom of the slope; alternatively,
load on the upper slope can be reduced by removing material.

History


The subject site was previously subdivided into many urban lots but never developed. The Town
recently acquired almost all the titles within the subject area, and is in the process of closing the
roads and consolidating the titles into several large titled areas. The Town previously expanded
to the south of the subject property between Muskeg Creek and Tawatinaw Valley including the
uplands to the west and a portion of east uplands.

Subdivision Application


Werner Jappsen Architect Ltd. on behalf of the Appellant (Whispering Valley Golf Course Ltd.)
submitted a subdivision application dated February 15, 2002 for a future golf course and
residential area.

After the initial application was processed, the SA circulated copies of the application to all
concerned parties. There were no letters of objection from the adjacent landowners or the referral
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agencies to whom letters were circulated. AT did indicate that no direct access to Highway 55
would be allowed and that all access to the proposed lots should be developed through the local
road system. AT concluded that sections 9 through 16 of the Regulation are satisfied. The
permanent and naturally occurring bed and shore of the Tawatinaw River is Crown owned
except within the lands once granted to the Hudson Bay Company (the Hudson Bay Reserve –
between 41 Avenue and 47 Avenue). Sustainable Resource Development, for the Department of
Public Lands, require the minimum 10-m Environmental Reserve along the River to be left in its
natural state to protect habitat. Public Lands have concerns regarding how the proposed golf
course will impact the habitat in the subject area. Public Lands also have to consult with the
Federal Department of Fisheries and Oceans, who also has jurisdiction, prior to any golf course
development agreement.

The SA requires a development agreement prior to any future development. It was also noted
that reserves could not be acquired since section 663(b) of the Act applies and the proposal is for
lots of 16.0 hectares or more.

The SA refused the subdivision application on April 21, 2004 stating the topography and soil
characteristics of the subject site lead to a substantial potential for subsidence and/or erosion,
which is unsuitable for the intended purposes. According to section 654(1) of the Act a
subdivision authority must not approve an application for subdivision unless the land that is
proposed to be subdivided is, in the opinion of the subdivision authority, suitable for the
purposed use for which the subdivisions intended.

By letter dated April 25, 2004, the Appellant decided to appeal to the MGB stating section
654(1)(a) of the Act has been completely misinterpreted and does not apply to the subdivision
approval.

ISSUES

1. Despite the current designations for the land in the MDP and LUB, does potential for
subsidence/erosion render the subject site unsuitable for the purposes of the proposed
subdivision?

2. Would approval of the subdivision application on condition of subsequent geotechnical
approval constitute an improper deferral of the MGB’s decision-making authority?

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LEGISLATION

In order to decide the disputed issues in this subdivision appeal, the MGB looks to the direction
in the Act, Regulations, Bylaws and Statutory Plans.

Municipal Government Act

Sections 617, 654(1), 622(3), and 680(2) of the Act govern the MGB’s authority and jurisdiction
for subdivision appeals.

Section 617 of the Act provides the overall concept for land use planning in Alberta. In
reviewing subdivision appeals, the MGB views this section as the main guideline from which all
other provincial and municipal planning documents flow. Therefore, all documents must comply
with the philosophy expressed in section 617.

617 The purpose of this Part and the regulations and bylaws under this Part is to provide means
whereby plans and related matters may be prepared and adopted
(a) to achieve the orderly, economical and beneficial development, use of land and patterns
of human settlement, and
(b) to maintain and improve the quality of the physical environment within which patterns of
human settlement are situated in Alberta,
without infringing on the rights of individuals for any public interest except to the extent that is
necessary for the overall greater public interest.

All provisions of the Land Use Bylaw, Municipal Development Plan and any area structure plans
that may exist for the area proposed for subdivision bind an SA. Because these statutory plans
bind an SA, it is only where they specifically state the SA has discretion that the SA may
exercise discretion to approve; otherwise, the SA’s decision must reflect both the uses and
standards of these plans. In addition to the statutory plans, the SA is bound by the legislation and
regulations impacting a proposal and must be assured the site is suitable for the intended use.

654(1) A subdivision authority must not approve an application for subdivision approval unless
(a) the land that is proposed to be subdivided is, in the opinion of the subdivision authority,
suitable for the purpose for which the subdivision is intended,
(b) the proposed subdivision conforms to the provisions of any statutory plan and, subject to
subsection (2), any land use bylaw that affects the land proposed to be subdivided,
(c) the proposed subdivision complies with this Part and the regulations under this Part, and
(d) all outstanding property taxes on the land proposed to be subdivided have been paid to
the municipality where the land is located or arrangements satisfactory to the
municipality have been made for their payment pursuant to Part 10.

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Subdivision and Development Regulation AR 43/2002

7 In making a decision as to whether to approve an application for subdivision, the subdivision
authority must consider, with respect to the land that is the subject of the application,
(a) its topography,
(b) its soil characteristics,
(c) storm water collection and disposal,
(d) any potential for the flooding, subsidence or erosion of the land,
(e) its accessibility to a road,
(f) the availability and adequacy of a water supply, sewage disposal system and solid waste
disposal,
(g) in the case of land not serviced by a licensed water distribution and wastewater
collection system, whether the proposed subdivision boundaries, lot sizes and building
sites comply with the requirements of the Private Sewage Disposal Systems Regulation
(AR 229/97) in respect of lot size and distances between property lines, buildings, water
sources and private sewage disposal systems as identified in section 4(4)(b) and (c),
(h) the use of land in the vicinity of the land that is the subject of the application, and
(i) any other matters that it considers necessary to determine whether the land that is the
subject of the application is suitable for the purpose for which the subdivision is
intended.

The situation is somewhat different for the MGB. While the decisions of the MGB must conform
to the uses of land referred to in the appropriate land use district of the LUB, the MGB only has
to have regard for the MDP or area structure plans. The MGB is not bound to the standards of
the land use district such as parcel size and density; however, it is bound to the standards if they
are integral to the purpose and intent of the land use district. To make this determination, the
MGB looks to the MDP to give meaning to the purpose and intent of the land use district.
Section 680(2) of the Act outlines factors the MGB must consider when determining an appeal.

680(2) In determining an appeal, the board hearing the appeal
(a) must have regard to any statutory plan;
(b) must conform with the uses of land referred to in a land use bylaw;
(c) must be consistent with the land use policies;
(d) must have regard to but is not bound by the subdivision and development regulations;
(e) may confirm, revoke or vary the approval or decision or any condition imposed by the
subdivision authority or make or substitute an approval, decision or condition of its own;
(f) may, in addition to the other powers it has, exercise the same power as a subdivision
authority is permitted to exercise pursuant to this Part or the regulations or bylaws
under this Part.

The MGB must also be consistent with the Land Use Policies established by Cabinet under
Section 622 of the Act.
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622(1) The Lieutenant Governor in Council may by order, on the recommendation of the
Minister, establish land use policies.
(3) Every statutory plan, land use bylaw and action undertaken pursuant to this Part by a
municipality, municipal planning commission, subdivision authority, development authority or
subdivision and development appeal board or the Municipal Government Board must be
consistent with the land use policies.

Provincial Land Use Development Policies (Order in Council 522/96)

2.0 THE PLANNING PROCESS

Goal

Planning activities are to be carried out in a fair, open, considerate, and equitable manner.

Policies

1. Municipalities are expected to take steps to inform both interested and potentially affected
parties of municipal planning activities and to provide appropriate opportunities and
sufficient information to allow meaningful participation in the planning process by
residents, landowners, community groups, interest groups, municipal service providers, and
other stakeholders.

2. Municipalities are expected to ensure that each proposed plan amendment, reclassification,
development application, and subdivision application is processed in a thorough, timely,
and diligent manner.

3. When considering a planning application, municipalities are expected to have regard to
both site specific and immediate implications and to long term and cumulative benefits and
impacts.

4. In carrying out their planning responsibilities, municipalities are expected to respect the
rights of individual citizens and landowners and to consider the impact of any policy or
decision within the context of the overall public interest.

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5.0 THE NATURAL ENVIRONMENT

Goal

To contribute to the maintenance and enhancement of a healthy natural environment.

Policies

1. Municipalities are encouraged to identify, in consultation with Alberta Environmental
Protection, significant ravines, valleys, stream corridors, lakeshores, wetlands and any other
unique landscape area, and to establish land use patterns in the vicinity of these features,
having regard to their value to the municipality and to the Province.

2. If subdivision and development is to be approved in the areas identified in accordance with
policy #1 municipalities are encouraged to, within the scope of their jurisdiction, utilize
mitigative measures designed to minimize possible negative impacts.

3. Municipalities are encouraged to identify, in consultation with Alberta Environmental
Protection, areas which are prone to flooding, erosion, landslides, subsidence, or wildfire and
to establish appropriate land use patterns within and adjacent to these areas.

Municipal Development Plan

As indicated above, the MGB must have regard to the MDP. Section 2.2 and 2.5 of the MDP
read as follows.

2.2 RESIDENTIAL DEVELOPMENT

GOAL

To allow for residential growth and change, and to provide a desirable mixture of housing
types available and affordable to all kinds of households, in an orderly and efficient
manner.

OBJECTIVES

a) To ensure that sufficient land is available to meet future housing needs.
b) To ensure that the Town develops in an orderly, planned, and efficient manner.
c) To provide a desirable variety of residential alternatives to meet housing demands.
d) To establish locational criteria and housing design standards for all residential uses.

POLICIES
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1) Town Council shall encourage private developers to participate in residential
development.
2) All future residential development should occur on lands designated Residential on
the Future Development Plan.
3) Town Council will ensure that plans are prepared and adopted that allow for properly
planned infrastructure requirements such as roads and utilities.
4) Wherever possible, street frontages should be minimized. Excessive frontage adds to
development costs and increases maintenance costs.
5) Town Council will discourage residential and commercial uses facing each other.
6) Single-family residential units should remain the dominant housing type.
7) Since they have different configurations than “stick-built” single-family homes (in
that they are normally much longer and narrower than a conventional house),
manufactured homes should be restricted to specific subdivisions designed for
manufactured homes or to manufactured home parks.
8) When single-family residential sites are constructed, such design features as loops,
cul-de-sacs, and buffers to create quiet, low traffic areas should be incorporated.
9) Duplexes, fourplexes, and walk-up apartments should be encouraged to locate in all
areas of the Town.
10) Multi-family units may be permitted in the business area on the second-storey of
commercial buildings or adjacent arteriel or collector streets.
11) High-density housing family sites should locate adjacent to arterial or collector
streets.
12) Housing for senior citizens should be made available at convenient locations.
13) Additional land for future senior citizen housing projects should be considered in the
area surrounding the Performing Arts Centre.
14) Growth on the western escarpment will be limited to Athabasca University and
related development.

2.5 NATURAL AREAS

GOAL

To ensure that development is appropriate to the topographical constraints and recognizes
the existence of such constraints in various areas of the Town.

OBJECTIVES

a) To prevent erosion and other topographical problems as a result of development.
b) To preserve natural features.

POLICIES
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1) Only recreational developments will be allowed in Natural Areas. The intensity of such
developments will be dependent upon the sensitivity of the landscape, the nature of the
existing or potential topographical problem, and the overall suitability of the land for
development of any sort.
2) With sufficient testing, Town Council will consider amendments to the boundaries of
the Natural Areas.
3) Without limiting the exact nature of development, the following areas require special
attention and, in some instances, development must be precluded from the vicinity of
these areas:

a) Tawatinaw Valley hillsides. Topographical and geo-technical consideration must be
given to any development adjacent to the Valley. Not only the Valley and its walls
require preservation, but appropriate setbacks from the top of the valley must be
provided and restrictions on development adjacent to the top of the valley must be
required in order to limit the hazard for development at the top of the valley.

d) East Escarpment. Areas adjacent to the top of the Tawatinaw Valley must be proven
to be geo-technically sound before development is approved.

Land Use Bylaw

As indicated above, the MGB is bound by the LUB, which stipulates uses for various designated
districts. Sections 4, 6, 16 and 17 of the Schedule of Land Use District Regulations (Schedule B)
pertain to districts R2, R4, I and UR. The residential unit of the proposed development is
currently designated R2 and R4, while the proposed golf course is in an area designated I and
UR.

4. RESIDENTIAL DISTRICT - R2

The general purpose of this District is to permit development of primarily smaller one family
dwellings.

1. Permitted Uses
(a) One family dwellings
(b) Two family dwellings on approved sites
(c) Day homes
(d) Buildings and uses accessory to permitted uses.

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2. Discretionary Uses
(a) Basement suites
(b) Bed and breakfasts
(c) Boarding houses
(d) Churches
(e) Day cares
(f) Home occupations
(g) Family care facilities
(h) Group care facilities
(i) Modular units
(j) Public or quasi-public buildings and uses or public utilities which are required to
serve the immediate area
(k) Small parks and playgrounds which serve specific residential developments
(l) Other uses which, in the opinion of the Municipal Planning Commission, are similar
to the above-mentioned permitted or discretionary uses
(m) Buildings and uses accessory to discretionary uses

6. RESIDENTIAL DISTRICT - R4

The general purpose of this District is to permit development of one family dwellings that are not
intended to be served by municipal piped water supply and sanitary sewage disposal services.

1. Permitted Uses
(a) One family dwellings
(b) Day homes
(c) Buildings and uses accessory to permitted uses

2. Discretionary Uses
(a) Basement suites
(b) Bed and breakfasts
(c) Day cares
(d) Home occupations
(e) Manufactured homes
(f) Outdoor storage properly screened
(g) Public or quasi-public buildings and uses or public utilities which are required to
serve the immediate area
(h) Other uses which, in the opinion of the Municipal Planning Commission, are similar
to the above mentioned permitted or discretionary uses
(i) Buildings and uses accessory to discretionary uses


4. Minimum Construction Standards
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All development in this District must be provided with sanitary facilities pursuant to the
Plumbing Code Regulation. The availability and suitability of water on site must also be
confirmed.

5. Where lots back onto Environmental or other Reserves which cannot be developed for
residential purposes, the following regulations shall apply, notwithstanding any other
regulations in this Section:

(a) Minimum Required Year Yard – 5 m (16.5 ft.)
(b) Minimum Lot Area – 0.18 ha (0.44 acres)

16. INSTITUTIONAL DISTRICT - I

The general purpose of this District is to permit development of uses of either a public or private
nature which provide services to the community.

1. Permitted Uses

(a) Churches
(b) Community Halls
(c) Hospitals and Nursing Homes
(d) Playschools
(e) Schools
(f) Senior Citizens Homes and similar buildings
(g) Buildings and uses accessory to permitted uses

2. Discretionary Uses

(a) Cemeteries
(b) Cultural and recreational facility
(c) Day cares
(d) Private clubs and lodges
(e) Public or quasi-public buildings
(f) Recreational uses
(g) Other uses which, in the opinion of the Municipal Planning Commission, are similar to
the above mentioned permitted or discretionary uses

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3. Regulations

(a) All regulations shall be as determined or required by the Development Authority

17. URBAN RESERVE DISTRICT - UR

The general purpose of this District is to reserve those lands on the periphery of the municipality
which, by their relationship to existing land uses, to the main road system, and to the established
utility systems, will in time become suitable for general urban uses.

1. Permitted Uses

(a) None

2. Discretionary Uses

(a) One family dwellings – on parcels existing at the date of the approval of this Bylaw
only
(b) Farming and cultivation of land, but not including such agricultural uses as feed lots,
hog barns, poultry farms, and fur farms
(c) Any strictly temporary use of building which, in the opinion of the Municipal Planning
Commission, will not prejudice the possibility of conveniently and economically
subdividing or developing the area in the future
(d) Public utility installations and uses
(e) Public or quasi-public buildings and uses
(f) Natural Resource Extraction in areas which are currently being used for same as of the
date of the passage of this Bylaw
(g) Other uses which, in the opinion of the Municipal Planning Commission, are similar to
the above mentioned discretionary uses
(h) Buildings and uses accessory to discretionary uses

2. Regulations

(a) No subdivision or development other than for the above uses shall take place until an
overall plan for the area has been resolved. This plan should establish land uses, roadway
patterns, the proposed land use classifications, public reserve dedications, and utilities
policies.
(b) Relating to One family Dwellings

Minimum Required Yards – as required by the Municipal Planning Commission

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Proposed Land Use Bylaw Amendment

Under the bylaw amendment proposed by the Town, the entire development site would be
designated a “natural district”. Section 19 outlines the proposed purpose and use of such a
district.

19. Natural District - N

The general purpose of this District is to restrict development of uses and of buildings on lands
where, in the opinion of the Council, development should be substantially limited.

1. Permitted Uses
(a) Passive Recreation
(b) Uses accessory to permitted uses

2. Discretionary Uses
(a) Public Utilities
(b) Other uses which, in the opinion of the Municipal Planning Commission, are similar
to the above mentioned permitted or discretionary uses
(c) Uses and installations accessory to discretionary uses

3. Regulations
(a) All regulations shall be as determined or required by the Development Authority
(b) Notwithstanding any other provision of this Bylaw to the contrary, no buildings other
than fences shall be allowed within this District unless such buildings are entirely
temporary in nature.

SUMMARY OF THE APPELLANT’S POSITION

The Appellant’s application conforms to all the statutory requirements. The only contentious
issue raised by the SA is whether the slope of the Tawatinaw Valley is stable enough to be
suitable for the proposed residential development. Contrary to the SA’s position, the engineering
evidence suggests that the slope is suitable for the proposed development. Moreover, allowing
the proposed development would be of practical economic benefit and help stabilize the slope.
Therefore, the Appellant’s application should be granted.

Application of Legislative Framework

There is no dispute that the application conforms to the current LUB. It also conforms to the
MDP, as concluded by the SA. There is only one contentious issue among those that the MGB
must consider under the Act (section 654 and 680(2)) and the Subdivision and Development
Regulation AR/43/2002 (section 7): namely, the potential for subsidence, or slope stability.
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Although the Town has proposed an amendment to the LUB, the proposed amendment has not
yet passed, and the current bylaw should be applied. While the MGB must consider whether the
site is suitable for the proposed use, the SA’s conclusion as to its unsuitability and subsequent
bylaw amendment proposal are not relevant (
Banner Amusement Ltd.
v.
Edmonton City
Subdivision and Development Appeal
Board [1998] ABCA 126).

Site Suitability

Geotechnical Evidence


The MGB should focus on the evidence presented by the geotechnical experts with respect to
slope stability. The geotechnical evidence from experts for both the SA and the Appellant
support the subdivision application. First, Mr. Machibroda, P. Eng. (geotechnical consultant for
the Appellant) indicates in his report of August 29, 2003 that development of the Whispering
Valley Golf Course along the valley floor is geotechnically feasible; similarly, his report of
September 18, 2003 indicates that while intensive building development is not recommended,
random country residential development - such as the proposed development - should be
feasible. Second, the SA’s engineer, DCL Siemens Engineering Ltd., reviewed Mr.
Machibroda’s report concerning development of the golf course, and concurred with its
recommendations. Third, the Hardy Report - prepared in 1981 by Hardy Associates (1978) Ltd.
in connection with the MDP - was of the opinion

“… that development is geotechnically feasible and may be undertaken in certain
areas if the conceptual recommendations presented in this report are developed on
a site-specific basis and are rigorously adhered to. Requirements of the GMP
[General Municipal Plan] should include reference to the necessity of the
developer to supply a geotechnical assessment of any proposed development.”

All this geotechnical evidence supports the conclusion that the slope in question is sufficiently
stable to support the proposed development.

Reliability of Paul Machibroda Engineering Ltd. (PMEL) Reports


The Appellant took issue with the SA’s suggestion that Mr. Machibroda’s results are unreliable.
Mr. Machibroda prepared his report with professional care and thoroughness. Unlike Mr.
Doohan, P. Eng. (the SA’s geotechnical expert witness), Mr. Machibroda undertook a detailed
site inspection and reviewed aerial photographs of the area. He also took care to review previous
geotechnical work, including the Hardy Report, with which his results are consistent. DCL
Siemens Engineering Ltd. - the SA’s engineer - reviewed Mr. Machibroda’s report of August 29,
2003 favourably, and concurred with its recommendations in a letter signed by Mr. Siemens on
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September 15, 2003. Finally, all available evidence is consistent with Mr. Machibroda’s
findings. This evidence includes:

• data from Alberta Transportation’s inclinometers;
• topographical features such as the absence of heaving toward the river (which would suggest
a concave failure as opposed to a horizontal one);
• the presence of lubricating bentonite at the level indicated by the model;
• the river valley structure itself (since if the failure were deeper than the level suggested by
Mr. Machibroda, the opposing western valley side would prevent movement).

Five Step Analysis of Slope Stability


The Appellant suggested the following five steps should be used to analyze the issue of slope
stability in relation to the proposed development:

(1) identify the “fault line”, or deep seated failure;
(2) identify the block subject to movement;
(3) identify the type of possible movement;
(4) identify risk of movement;
(5) identify specific risks posed by that movement. Contrary to the SA’s submissions,
consideration of these steps supports the proposed development.

(1) Identify “fault line” or failure

The evidence of Mr. Machibroda and the reports issued by his company Paul Machibroda
Engineering Ltd. (PMEL) establish the location of the failure. Mr. Machibroda’s computer
model and related cross sections of the area show that the failure runs horizontally for almost a
kilometre from the Tawatinaw River eastwards at the same level as the bottom of the river
valley.

(2) Identify the block that may be subject to movement

The only evidence concerning the size and location of the block subject to movement is that of
PMEL and Mr. Machibroda. His computer model and cross sections show a wedge with the tip
at the Tawatinaw River, a horizontal bottom, and a top formed by the shallow (6 degree) slope of
the ground surface. The deeper mass of the wedge lies about eight hundred meters to the east of
the river. Mr. Machibroda said that the resistance of the valley floor balances the weight of the
thick eastern mass of the block. Gradual erosion of the “toe” of the block by the river leads to
slow and steady movement westward. No evidence supporting other mechanisms of movement
was presented.

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(3) Identify the type of possible movement

Mr. Machibroda’s report and oral evidence shows that the block identified above moves as a
solid slab west toward the river at about 4.5 mm per year. Contrary to the suggestion of Mr.
Doohan, this rate of movement is consistent with readings from inclinometers installed by
Alberta Transportation. While Mr. Doohan referred to a reading on one inclinometer showing
movement of 43 mm in one year, readings taken since 1996 on the same inclinometer show an
average rate of 4.3 mm per year. In addition, if movement were to take place at 50 mm per year,
the evidence suggests that the entire slab moves as a single block.

(4) Identify risk of movement

There is no risk of the kind of rapid movement experienced in the “Whitemud landslide”
situation referred to by the SA. In that case, a localized piece of the riverbank slid rapidly down a
45-degree slope, causing total destruction of a house. By contrast, the only risk in the present
case is that of extremely slow movement of a very large, gently sloping (6 degree) solid mass
along a horizontal failure. Movement is only 4.5 mm per year, which is not significant, even over
the life of a house.

(5) Identify the specific risk for development in such conditions

The specific risks to persons and property from such movement are minimal and easily
controlled. The geotechnical evidence shows that risk of subsidence can be managed with
affordable measures such as adequate drainage, monitoring, and appropriate foundation design;
thus, both the residential and golf course components of the proposed development are
technically and economically feasible.

Conclusion from the Above Analysis

The above five-step analysis suggests two possible options. First, maintaining the status quo by
refusing to allow the development application. Maintaining the status quo means that land will
continue to subside slowly over time due to erosion from the river. In addition, ponding caused
by blocked culverts under the disused railway grading will increase infiltration, or recharge. As
shown by Mr. Machibroda, increased recharge will raise groundwater levels, thus decreasing
slope stability still further.

The second option is to improve matters by allowing the Appellant to proceed. The Appellant’s
proposal includes detailed, economically feasible recommendations concerning site preparation,
foundation design, drainage, irrigation, excavation, vegetation, loading conditions, monitoring,
and erosion control. In addition, any residential development will occur on the valley floor where
risk to property is minimal. The engineering evidence shows that following these
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recommendations will allow for safe development and raise the economic value of the land. At
the same time, it will improve soil stability in the following ways:

• ponding along the railway grading will be eliminated;
• loading along the valley floor will be improved;
• erosion control measures will help prevent slumping along the river; and
• groundwater levels will be stabilized.

In short, allowing the Appellant to proceed will benefit soil stability and improve economic
conditions; in contrast, preserving the status quo will allow continued degradation of soil
stability and have no economic benefit. Therefore, the best practical alternative is to allow the
application.

Exercise of the MGB’s Authority

The Appellant denied the SA’s assertion that allowing the application would amount to improper
deferral of a decision regarding suitability; several reasons were offered in support. First, there is
no deferral, since the geotechnical evidence establishes there will be at least one suitable
building site on the 62.5-hectare parcel. Second, section 655(1) of the Act allows the subdivision
authority (and hence the MGB) to impose conditions to ensure the statutory plans, land use
bylaws, and regulations are observed. (Board Orders MGB 188/97, MGB 61/95, and MGB
091/01). Third, the current proposal will reduce rather than increase risk, because the area is
currently subdivided into many residential lots. This circumstance distinguishes the current
situation from the deferral cases relied on by the SA, which dealt with applications to divide
larger units into smaller residential lots.

Negligence

The Appellant also denied the SA’s assertion that allowing the contemplated development to
proceed could be construed as negligence. Potential problems with subsidence will be dealt with
through restrictive covenants, which will prevent development without appropriate geotechnical
approval. In any event, the land in question is presently subdivided into about 1,000
(undeveloped) lots. The Appellant proposes to consolidate the existing residential lots into a
much smaller number. Thus, the Appellant’s proposal moves in the direction of preventing
damage from subsidence. No liability in negligence could attach to approving such a proposal.

SUMMARY OF THE SA’S POSITION

The MGB must “step into the shoes” of the SA; in so doing it has the responsibility of forming
an opinion as to whether

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“the land that is proposed to be subdivided is … suitable for the purpose for
which the subdivision is intended.” (Section 654(1) of the Act)

The geotechnical evidence presented at this hearing does not show that the lands in question are
“suitable for the purpose” of the proposed subdivision. In addition, it would be inappropriate for
the MGB to defer determining suitability by granting the application subject to further
geotechnical investigation and approval. Therefore, the application should be rejected.

Application of Legislative Framework

The SA drew the MGB’s attention to certain features of the relevant legislative framework. It
noted Section 617 of the Act mandates a balance between public and private rights by achieving

“the orderly, economical and beneficial development, use of land and patterns of
human settlement

without infringing on individual rights except to the extent necessary for the
overall public interest.”

Responsibilities reflecting this balance are listed in section 680(2). Thus, the MGB must

1. have regard to any statutory plan,
2. conform with the uses of land referred to in the land use bylaw,
3. be consistent with the land use policies (established by the Provincial Cabinet), and
4. have regard to subdivision and development regulations.

The Appellant emphasized the following aspects of these four items.

1.
Municipal Development Plan


The SA’s MDP includes a reference to “Natural Areas”, with the goal to “ensure that
development is appropriate to topographical constraints”. Further, the MDP states:

“the [Tawatinaw] Valley and its walls require preservation, but appropriate
setbacks from the top of the valley must be provided and restrictions on
development adjacent to the top of the valley must be required to limit the hazard
for development at the top of the valley.” (p. 14 SA’s brief)

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2.
Land Use Bylaw


The current LUB contemplates residential/institutional development in the area under appeal,
and is consistent with the Appellant’s proposal. However, a proposed amendment to the bylaw
will change the area’s designation to “Natural”. This designation would prevent residential
structures. Furthermore, while the MGB must apply the land use by law in effect at the time of
its decision, it may also consider the proposed amendment.

3.
Land Use Policies


MGB decisions must be consistent with the spirit, intent and direction of the Land Use Policies
adopted by Provincial Cabinet. These policies encourage municipalities (and hence the MGB) to:

• have regard to both site specific and immediate implications and to long term
and cumulative benefits and impacts;
• respect the rights of individual citizens and consider the impact of any policy
or decision within the context of the overall public interest; and
• identify areas prone to subsidence (among other things) and establish appropriate land
use patterns within and adjacent to these areas.

4.
Subdivision and Development Regulations


Under section 7 of the Subdivision and Development Regulation, the subdivision authority must
consider various factors, including the land’s

• topography;
• soil characteristics;
• potential for flooding subsidence or erosion of the land; and
• other matters necessary to determine whether the land that is the subject of the
application is suitable for the purpose for which the subdivision is intended.

Site Suitability

Geotechnical Evidence


Even when taken at face value, the Appellant’s evidence does not meet the onus of establishing
suitability. Its own professional engineering witness, Mr. Machibroda, indicated that industry
standards require a “factor of safety” (FS) of 1.3 for development. At the same time, Mr.
Machibroda calculated the FS of the land proposed for development to be about 1.1. Thus, far
from establishing suitability, the Appellant’s evidence proves that the subject area of the
application is not suitable for residential development.
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While Mr. Machibroda indicated that risk management must be undertaken to ensure safe
development, this amounts to an acknowledgment that the area is not truly suitable for
development. Furthermore, although Mr. Machibroda’s recommendations may help control risk,
he himself testified that (i) they will not lower ground water levels, and (ii) a modest increase in
ground water levels would reduce the FS to below 1.0. Given that the area under consideration
has experienced drought for several years, it is reasonable to expect groundwater levels to
increase in the future.

Reliability of PMEL’s Evidence


Having argued that even taken at face value, Mr. Machibroda’s evidence does not establish
suitability, the SA went on to question whether his evidence is reliable.

First, the deep-seated plane of failure modelled by Mr. Machibroda has not been located
physically. Thus, the plane of failure may lie deeper than his computer model predicts, or a
second failure may exist. This possibility is supported by evidence from AT’s inclinometers
(farther north and higher up the valley). Although one reading from these inclinometers is
consistent with Mr. Machibroda’s model, another suggests that the failure is somewhat deeper.

Second, the SA’s expert witness, Mr. Doohan, noted that Mr. Machibroda has not followed the
recommendation of an earlier geotechnical report (the Hardy Report), which advocated installing
and monitoring inclinometers to measure movement. While Mr. Machibroda did install
inclinometers at the relevant site, they are few in number (three) and have only been in place
since February 2004. In Mr. Doohan’s opinion, this period is not long enough to generate
reliable results. Inclinometers do not tell when subsidence will happen, but only when it has
happened. Thus, one must observe results over a long period of time to establish a pattern of
movement.

Third, the limited evidence available suggests that the slope is not moving at a steady rate of 4
mm per year; rather, its pattern of movement is jerky and unstable. Thus, readings from one of
AT’s inclinometers show movement of two inches in one year and little or no movement in other
years.

Fourth, the SA questioned Mr. Machibroda’s evidence that constructing buildings on stiff
concrete raft foundations can control risk of damage from soil movement. It again pointed to the
evidence of Mr. Doohan, who warned that even if concrete raft foundations resist breaking, it
will still be subject to tipping, and will likely move in relation to attached improvements such as
gas and sewer lines.

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Fifth, Mr. Doohan’s evidence was that the standard FS factor of 1.3 quoted by Mr. Machibroda
is intended for earth works and embankments rather than residential development. Mr. Doohan
suggested a factor of about 2.0 was more appropriate for residential construction.

Sixth, Mr. Doohan’s opinion was that implementing Mr. Machibroda’s recommendations (or any
other economically feasible measures) will not raise the FS to 1.3 or higher. Failures such as the
deep-seated failure acknowledged by all to exist under the proposed area for development simply
cannot be stabilized. Moreover, to allow residential development in an area with a FS of about
1.0 or 1.1 would pose an extremely high risk.

Finally, the SA questioned Mr. Machibroda’s suggestion that the measures he proposed will
improve overall stability. For example, Mr. Machibroda indicated that proper drainage for the
golf course will stabilize groundwater levels, thus promoting stability. He also said that building
houses in the proposed location will add load at an appropriate part of the slope, thus helping to
slow movement. In contrast, Mr. Doohan suggested that the overall impact of residential
development on stability may well be negative. For example, residential housing will likely
require a wider road parallel to the valley wall, which may promote subsidence. Similarly, the
development contemplated will remove part of the existing railway grading, thus reducing load
on a critical part of the slope.

Problems in Similarly Situated Developments


There is evidence that adjacent subdivisions already in place have experienced problems with
soil subsidence. Mr. Topinka holds the position of Development Officer with the SA. He noted
that the Hees Estates subdivision, located adjacent to the proposed subdivision on the western
side of the valley, has suffered damage to both municipal and private property due to soil
movement. In one case, a garage separated from the house to which it was attached. In another, a
storm sewer sheared. Similarly, in the older development immediately to the north of the
proposed subdivision, a water main was badly sheared.

Exercise of the MGB’s Authority

The MGB must not defer determination of suitability to a later date; rather, it must satisfy itself
as to site suitability based on the evidence before it and in relation to the regulatory framework
described above. In support of this proposition, the SA discussed and relied on the following
jurisprudence.


Camrose (County No. 22)
v.
Alberta (Planning Board)
[1981] (A.J. No. 608) involved a
subdivision application in which the Alberta Planning Board (APB) had to decide suitability for
rural residential lots. The APB granted approval on condition that well pump tests be done to
ensure sufficient water for residential lots; final density of lots was to be determined based on the
recommendation of Alberta Environment and the health authority.
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The Alberta Court of Appeal rejected the APB’s approach, and held that it is

“not possible for the Alberta Planning Board, being satisfied that it did not have
sufficient evidence re potable water, to permit a development in the absence of
such evidence.”

Thus, an authority charged with determining site suitability must not defer the issue by granting
an application subject to future testing and analysis; rather, it must be fully satisfied as to the
land’s suitability before approving the subdivision application.
Seabolt Watershed Association
v.
Yellowhead (County) Subdivision and Development Appeal Board
[2001] (ABCA 24), and
274099 Alberta Ltd.
v.
Sturgeon No. 90 (Municipal District) Development Appeal Board
(Alta
C.A.) [1990] A.J. No. 1067 support similar principles.


The MGB has followed the Alberta Court of Appeal’s approach in numerous decisions. For
example, in MGB 188/97, the MGB considered an application to subdivide a larger titled area
into residential lots of three to five and one-half acres. It found that

“issues of slope stability, storm, sewage disposal and water supply were
insufficiently addressed.”

Moreover,

“While certain of these technical issues can be the subject of restrictive conditions
on a subdivision approval, the Board is of the opinion that suitability of the land
for subdivision should be demonstrated prior to granting approval.”

Board Orders MGB 290/98 and MGB 091/01 came to similar conclusions.

The Appellant has not submitted sufficient evidence to show there are pockets of land suitable
for residential development within the proposed subdivision; rather, it suggests that restrictive
covenants requiring geotechnical approval for development on individual sites, development
agreements, and condominium bylaws can deal with potential difficulties. Such mechanisms are
not appropriate; the law requires suitability to be determined by the approval-granting body at
the time of the application. To allow the appeal on the basis of conditions suggested by the
Appellant would improperly defer the issue of suitability.

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Negligence

Municipalities are becoming increasingly vulnerable to claims in negligence. Thus, in
Bowen
v.

Edmonton (City)
[1977] (A.J. No. 540) Clement J. found the City of Edmonton negligent for
ignoring the matter of soil stability, which ought reasonably to have been a concern. In
Gibbs
v.
Edmonton (City)
[2001] (A.J. No. 644) (Upheld by Alta CA) the Court found that the resulting
potential for subsidence was a matter which should have been considered by the City before
approving the subdivision. Similarly, the City of Edmonton is currently involved in litigation
concerning the collapse of housing overlooking the North Saskatchewan River due to soil
instability.

FINDINGS

Upon hearing and considering the representations and the evidence of the parties shown on
Appendix A, and upon having read and considered the documents shown on Appendix B
attached, the MGB finds the facts in the matter to be as follows.

1. Residential development on the proposed site would pose a risk to property due to potential
instability of the Tawatinaw Valley side.

2. Granting the application subject to satisfactory further geological testing would improperly
defer the MGB’s decision.

In consideration of the above and having regard to the provisions of the Act, the MGB makes the
following decision for the reasons set out below.

DECISION


The appeal is denied and the subdivision is refused.

REASONS

Application of Legislative Framework

Section 680(2) of the Act requires the MGB to have regard to statutory plans as well as
subdivision and development regulations. In addition, its decision must conform to the land use
bylaws, and be consistent with the provincial land use policies established by Order in Council
under section 622 of the Act.


The MGB understands that the MDP and current LUB are not inconsistent with the proposed
development. However, the MDP and LUB are not the only factors that must be considered.
Thus, section 7 of Alberta Regulation 43/2002 establishes that the potential for flooding,
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subsidence or erosion of the land is a relevant consideration when approving a subdivision
application. Similarly, section 654(1) of the Act places an obligation on the SA not to grant
approval unless the land is suitable for the subdivision’s intended purpose. In addition, the MGB
must be consistent with the land use policies established by Order in Council under section 622
of the Act. These Policies require regard for immediate and long-term impacts of decisions, as
well as individual rights and the overall public interest; it also encourages municipalities to
identify areas prone to subsidence (among other things) and to establish appropriate land use
patterns.

Having heard evidence that the subject site may be unstable, the MGB is alert to the possibility
that it may not be suitable for residential development. The public has an overriding long-term
interest in ensuring that residential development proceeds only in suitable stable conditions.
Therefore, the MGB is satisfied that it should not grant the application if there is evidence to cast
material doubt as to the presence of such conditions, even if the suggested development appears
compatible with the current LUB and MDP.

Site Suitability

The parties presented a great deal of geotechnical evidence on the issue of slope stability,
including several geotechnical reports, and expert testimony from Mr. Machibroda and Mr.
Doohan. Both sides agreed the evidence supports the proposed golf course; however, they
disagreed as to whether the area in question is suitable for buildings or residential development.

The most detailed investigative technical reports were those produced by PMEL. These reports
identify the main source of potential movement to be a deep-seated failure below the Tawatinaw
Valley side, allowing movement eastward along a layer of lubricating bentonite. The PMEL
reports employed a computer model to simulate the characteristics of the proposed site, and
calculated factors of safety (FS) along cross sections of the proposed development site. The
August 29 PMEL report described the area as follows.

“Review of the slope stability analysis results revealed that the existing valley
side slopes are in a metastable condition at or near a factor of safety of unity. A
factor of safety of unity implies that movement of the existing slopes may be
reactivated by minor changes in groundwater level, soil loading or soil erosion.

Existing landslides along the Tawatinaw River Valley appear to have occurred
where the bedrock topography slopes upwards into the uplands and where the
bedrock (clay shale) has been eroded. Localize (sic) slumping is currently
occurring along the outside meanders of the Tawatinaw River in areas where toe
erosion of the bank is occurring.” (page 21 of August 29, 2003 PMEL report -
entered as Tab 57 of exhibit A4).

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PMEL interpreted the evidence to suggest that residential development may be feasible so long
as precautions are taken to manage risk due to potential movement. For example, the PMEL
report of Sept 18, 2003 says

“Intensive building development is not recommended in the slope area due to the
possibility of reactivating existing landslides. Random country residential
development should be feasible since it is not anticipated to significantly impact
the slope stability and/or the ancestral landslides.” (Page 5 of September 18, 2003
PMEL Report – entered as tab 60 of exhibit A4).

PMEL’s risk management measures cover items such as surface drainage, preservation of natural
vegetation, shallow excavation, continued groundwater monitoring, irrigation control, control of
sanitary effluent, setback allowances between the river and proposed buildings, and appropriate
foundation design. The PMEL recommendations are consistent with those of the earlier Hardy
Report, which also said that development is “geotechnically feasible” if certain
recommendations are observed and monitoring is undertaken to establish that the slope is not
moving.

In contrast to PMEL, Mr. Doohan and Shelby Engineering (Shelby) interpreted the evidence to
suggest that development on the proposed site would pose an extreme risk. Mr. Doohan
highlighted PMEL’s statement (quoted above) that an FS of unity implies that movement of the
existing slopes may be reactivated by minor changes in groundwater level, soil loading, or soil
erosion. In addition, he noted that an FS of 1.0 is well below the customary values between 2 and
3 recommended for foundations by the Canadian Geotechnical Society in the “Canadian
Foundation of Engineering Manual” (2d Edition) 1985; indeed, it is even below the 1.3 value
recommended as a minimum for earthworks. Thus, in a letter from Shelby Engineering to DCL
Siemens (January 12, 2004) regarding factors of safety, Mr. Doohan writes

“When F of S is equal to 1.0 the slope is in a state of impending failure. Generally
an F of S of 1.5 is acceptable for the design of a stable slope. However, for
foundations of structures a Fof S of 2.0 is desirable.

In the Athabasca area documented landslides have occurred in the past. The
Athabasca Elementary School and 13 houses were damaged in 1968. This slide
was reported to have occurred along deep zones of weakness or bedding planes in
the clay shawl bedrock. It would be unwise to assume that slides would occur
only in the overlying glaciolacustrine sediments and not the bedrock.” (Page 1 of
letter entered as Tab 65 of exhibit A4)

Mr. Doohan also stressed that no economically feasible risk reduction measures can improve the
FS from 1.0 to 1.3 - let alone 2.0. He said once failure has occurred, the soil is weakened and
further failure becomes likely. Finally, he expressed doubt as to the usefulness of data collected
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over the short time since PMEL’s slope indicators were installed, and suggested that future
monitoring would have to reveal a “dramatic discovery of new information” to alter the existing
understanding concerning the site’s basic instability.

The MGB finds that the evidence presented does not establish the site’s suitability for the
purposes of the proposed residential development. As emphasized by the SA, there are several
indications that the proposed area may not be suitable for residential development. The most
notable are the FS values calculated by PMEL on page 20 of its report of August 29, 2003.
PMEL’s model calculated FS values of 1.02. 1.12, 1.03, 1.00, and 1.13 along cross sections of
the area in question; clearly, these values are much lower than those recommended by the
portion of the professional engineering manual entered into evidence, which begin at 1.3.

Evidence from professional engineering firms DCL Siemens and Shelby Engineering support the
view that a “metastable” area with an FS of near 1.0 may be unsuitable for residential
development. DCL Siemens considered the low FS levels to be “a major red flag” (letter from
Ted Duffy October 7, 2003 6R Tab 16), while Shelby Engineering opined that residential
development in such an area poses an “an extremely high risk”. Past problems with instability in
similar areas further justify the SA’s reluctance to grant approval.

While the evidence from Mr. Machibroda and PMEL support the view that limited development
should be possible if the risk is properly managed, this support is qualified by recommendations
for further geotechnical study. For example, in a letter to Ken Suitor (June 24, 2004) Mr.
Machibroda writes

“… we wish to state that the subject reports deal with the macro situation with
respect to the slopes adjacent to the two rivers (Athabasca and Tawatinaw). In this
context, based on our findings, residential development can take place subject to
the geotechnical considerations on the micro level which needs to be incorporated
into detailed foundation design of a specific building location.” (Letter to Mr.
Suitor dated June 24, 2004 and entered as Tab 88 of exhibit A4).

No evidence was introduced to identify a suitable building site within the area proposed for
residential development.

Exercise of the MGB’s Authority

Both parties agreed that before approving the subdivision application, the MGB must satisfy
itself as to site suitability based on the evidence before it. This position is supported by the case
law emphasized by the SA (e.g.
Camrose (County No. 22)
v.
Alberta (Planning Board)
[1981]
(A.J. No. 608)) and is consistent with previous decisions of the MGB. The MGB concurs with its
statement in Board Order MGB 188/97, where it considered the issues of slope stability, storm,
sewage disposal and water supply, and found as follows.
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“While certain of these technical issues can be the subject of restrictive conditions
on a subdivision approval, the Board is of the opinion that suitability of the land
for subdivision should be demonstrated prior to granting approval.”

The Appellant resisted the SA’s argument that approving the subdivision application would
amount to deferral of the issue of site suitability. It noted that Mr. Machibroda and PMEL were
confident that at least one building site would be found; thus, it said the evidence currently
before the MGB shows suitability. Second, it stressed that unlike the facts in the cases relied on
by the SA, the current subdivision proposal reduces risk by consolidating numerous lots into one
large subdivision, rather than the other way around.

The MGB does not accept the Appellant’s position in this regard. First, as discussed above, the
MGB finds the geotechnical evidence is at best equivocal on the issue of subsidence and site
suitability. Parts of the evidence suggest that the proposed area may not be suitable for
residential development; other parts suggest that further monitoring and geotechnical study must
be undertaken. As indicated above, there was no evidence to identify a suitable building site
within the area proposed for residential development. While it is possible that further monitoring
and geotechnical studies will confirm the existence and identity of feasible building sites, this
evidence is as yet unavailable, and hence was not before the MGB. Accordingly, the MGB is
satisfied that approving the subdivision application subject to satisfactory results of further
geotechnical investigation would amount to improper deferral of a decision regarding suitability.

Second, while it is true that the Appellant proposes to consolidate many lots into one, all the
parties agree that the site is not suitable to be developed as it is currently subdivided. Moreover,
because development of the land as it is currently subdivided appears unlikely, allowing the
application would have the practical effect of encouraging development in an area which may
not be suitable. Furthermore, the MGB is doubtful as to its authority to approve the subdivision
of land that may not be suitable for the subdivision’s intended purpose on the grounds that it is
even less suitable for the purposes of a prior subdivision arrangement.

Conclusion

The evidence shows that building on the proposed site presents a certain degree of risk. On the
one hand, PMEL considers this risk acceptable and manageable; on the other hand, Shelby
Engineering does not. In light of past difficulties with subsidence in similar areas and potential
exposure to liability, the SA’s decision to adopt Shelby’s more conservative position appears
highly reasonable. The MGB is satisfied that the evidence presented by the Appellant does not
establish that the proposed site is suitable for the intended purpose of one part of the proposed
subdivision: ie, limited residential development. While further monitoring and geotechnical
study may reduce the uncertainty - and hence the risk – involved with development on the site,
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such work has yet to be done. Accordingly, the MGB finds that the site has not been shown
suitable for the purposes of the proposed subdivision, and the Appellant’s appeal is denied.

DATED at the City of Edmonton, in the Province of Alberta, this 3
rd
day of September 2004.


MUNICIPAL GOVERNMENT BOARD



(SGD.) J. Acker, Presiding Officer
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APPENDIX "A"

PERSONS WHO WERE IN ATTENDANCE OR MADE SUBMISSIONS OR GAVE
EVIDENCE AT THE HEARING:

NAME CAPACITY


David Parketti Counsel for the Appellant
Paul Machibroda Expert witness for the Appellant in the area of soils, foundation,
and geotechnical engineering
Nick Parchewski Witness for the Appellant
Werner Jappsen Witness for the Appellant
Ken Suitor Witness for the Appellant
Jeneane Grundberg Counsel for the SA
Jim Doohan Expert Witness for the SA in the area of soil stability and
geotechnical engineering
Ted Duffy Witness for the SA
Doug Topinka Witness for the SA
Bill Dolman Witness for the SA

APPENDIX "B"

DOCUMENTS RECEIVED PRIOR TO THE HEARING AND MADE AVAILABLE AT THE
HEARING:

NO. ITEM


1. MGB Information Package


APPENDIX "C"

DOCUMENTS RECEIVED AT THE HEARING AND CONSIDERED BY THE MGB.

NO. ITEM


Exhibit 1A Jurisdictional Application and Adjournment Application –
Response
Exhibit 2R Supplementary Submission – Points of Law
Exhibit 3A Memorandum of the Appellant
Exhibit 4A Appellant’s Binder No. 2 of documents
Exhibit 5A Appellant’s Binder No. 1 of documents
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Exhibit 6R Book of Materials Filed on Behalf of the SA Volume Two
Exhibit 7R Photocopy of
Canadian Foundation Engineering Manual
, Second
Edition, Canadian Geotechnical Society, 1985 - page 130.
Exhibit 8R Book of Materials Filed on Behalf of the SA Volume One
Exhibit 9A Map showing slope indicators: Hwy. 55:10 & S.H. 813 Overpass
Exhibit 10A Proposed Bareland Condo Plan
Exhibit 11A Seven Photographs of the Appellant Whispering Valley Golf
Course Ltd.
Exhibit 12R Written Submissions and Authorities filed on Behalf of the SA
Exhibit 13R Statement of qualifications of William D. Dolman
Exhibit 14A Faxed copy of letter dated July 6, 2004 from Gary Deans,
Gemwood Construction Ltd., with attached development and
building permit applications
Exhibit 15A Authorities of the Appellant Whispering Valley Golf Course