July 13th, 2016 ~ Vol. 85 No. 28
Calgary lawyer accuses council of acting on bad faith
Crowsnest Pass Herald Front Page
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Crowsnest Pass Municipal Council
Pass Herald Reporter
A Calgary lawyer is accusing council of acting in bad faith for siding against his client in a long-running tiff that’s pitted a group of landowners against a subdivision developer over the route of a controversial road.

Trevor Hay, the developer, is trying to build a 72 acre grouped country residential subdivision. It would include 16 lots ranging in size from about 3.1 to 7.3 acres in the southwest Blairmore area.

He needs road access to complete the project but seems adamant on building it in such a way as to infuriate the neighbours.

His preferred route for the road would snake around the properties of a number of his previous clients. Hay had previously sold them land on which they’ve since built homes, including local landowner Salim Shah Mohammed.

At a meeting on July 5, council had just tabled a bylaw to rezone the proposed subdivision from Grouped Country Residential back to Non-Urban Area.

During the public hearing, Hugh Ham, Hay’s legal representative, stood in council chambers and said that having the public application to rezone was an act of bad faith.

“This hearing is about bias,” he said. “You granted the land use bylaw and then one or more of you has decided to risk your seat on council, and perhaps your personal assets, by conducting yourself in bad faith.”
In legal jargon bad faith is the intentional or malicious refusal to perform some duty or contractual obligation.
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Ham said the councillors had walked themselves into a trap and that he’d be coming after their personal assets including their houses, cars and pensions.

“When you go home tonight you can say to your spouse, ‘I just put our house and our RRSP and our car and our RV on the line, I just created a personal liability.’ You should all be ashamed of yourselves and on top of which, you’re not very intelligent because you’ve left a trail a mile wide,” said Ham.

“I suspect one or more of you has a business or other connection with one of the appellants,” he said. “You’re all following the pied piper down the road to hell and none of you are bright enough to know it. This is very likely going to end up as a lawsuit with you as a defendant.”

Ham accused council of trying to stop the Evergreen Heights subdivision by rescinding a bylaw that rezoned the land to allow for its construction. Ham said that would not happen and that he’d appeal to the Municipal Government Board and that he was confident of victory. He repeatedly urged council to seek legal advice.

Ham said his client had invested his retirement savings into the Evergreen Heights subdivision and noted that Hay had worked for decades as a dentist in the community.

“You’ve given him land use and now you think that by taking it away you’re going to stop this subdivision,” he said. “Well frankly, you don’t know how to read your own bylaw.”

His scathing speech completed, Ham left the meeting at the end of which council chose not to rescind Bylaw 931, 2015, which would have rezoned the land, back to a Non-Urban Area.

Councillor Bill Kovach said he voted not to rescind the bylaw so the matter wouldn’t be taken up with the Municipal Government Board.

“It’s not because of what the lawyer said today. I’m not concerned about losing my house or car,” said Kovach. “He’s going to take the other avenue and he’s going to get what he wants anyway.”

It was the latest chapter in a long-running dispute over the controversial road. For more than the past two years, Hay and his neighbours have clashed in council chambers on a number of occasions. At one meeting each side brought in their own engineers to argue that the other side’s plan was unfeasible.
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In October 2015, Hay’s opponents brought in Neil Powell, an engineer with MPE Engineering, who said the proposed road would cause drainage and flooding issues for his clients. He said extending 108th Street in Blairmore would be a better alternative.

At that same meeting, Hay’s engineer Rob Strom, of Strom Engineering, disagreed. He argued extending 108th Street would result in a road with grades of over 15 per cent, which could make it impassable. He also said the road extension would affect wetlands.

Later, one of landowners opposing the road pointed out that Hay’s daughter owns a home next to the subdivision but that the proposed road avoids her property entirely.

On March 1, after several delays, council unanimously sided against Hay. They rejected the Evergreen Subdivision Area Structure Plan over fears the proposed road access would negatively affect nearby residents.

“My concern is with that road,” said Councillor Dean Ward. “I keep going back to Section 56 of the Land Use Bylaw: A development will not unduly interfere with the amenities of the neighbourhood or materially interfere with or affect the use or enjoyment or value of neighbouring properties. I won’t vote for this area structure plan with that road in.”
July 13th ~ Vol. 85 No. 28
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