Simonelli v. Rocky View No. 44 (Municipal District), (2004) 350 A.R. 286 (QB)

• Judge: Park, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 30, 2003
• Citations: (2004), 350 A.R. 286 (QB);2004 ABQB 45

Simonelli v. Rocky View No. 44 (2004), 350 A.R. 286 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. FE.022

Domenico Simonelli (applicant) v. Municipal District of Rocky View No. 44 (respondent)

(0201 19018; 0201-12483; 2004 ABQB 45)

Indexed As: Simonelli v. Rocky View No. 44 (Municipal District)

Alberta Court of Queen's Bench

Judicial District of Calgary

Park, J.

January 22, 2004.

Summary:

Simonelli applied to amend the Municipal District of Rocky View No. 44's Land Use Bylaw C-4841-97 to change selective areas of his land designated as floodway to flood fringe. The Council of the Municipal District heard Simonelli's application at a public hearing and refused it. Simonelli applied for judicial review of the Municipal District's decision.

The Alberta Court of Queen's Bench allowed the application, set aside the decision and directed the Municipal District to reconsider Simonelli's application.

Administrative Law - Topic 1264

Classification of power or function - Powers or functions classified as legislative - Municipal bylaws, regulations or resolutions - Simonelli applied to amend a Municipal District's Land Use Bylaw to change selective areas of his land designated as floodway to flood fringe - The Land Use Bylaw applied the Federal Flood Damage Protection Guidelines to properties in the vicinity of the Elbow River within the Municipal District - The Council of the Municipal District heard Simonelli's application at a public hearing and refused it - On an application for judicial review, the Alberta Court of Queen's Bench held that the power of Municipal District Council in this circumstance was both legislative and quasi-judicial - While Simonelli's application was not made with respect to a specific proposed development of his land and did not involve the Council considering competing interests between him and adjacent land owners, the Council was required to consider public policy with regard to the impact of the Flood Damage Reduction Program - In performing the latter requirement, the Council was acting in a primarily legislative function - Accordingly, while it owed procedural fairness to Simonelli, it would be at a lower standard than if the Council was considering two competing private interests without any overriding public policy considerations - See paragraph 68.

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See Administrative Law - Topic 1264 ].

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - [See Municipal Law - Topic 1586 ].

Land Regulation - Topic 2693

Land use control - Zoning bylaws - Enforcement - Considerations - A Municipal District refused Simonelli's application to amend its Land Use Bylaw to change selective areas of his land designated as floodway to flood fringe - Simonelli applied for judicial review, arguing, inter alia, that the Municipal District did not consider relevant evidence and considered irrelevant evidence - The Alberta Court of Queen's Bench agreed with the Municipal District's submission that Alberta Environment's rejection of the reports of Simonelli's engineers was a relevant matter for the Municipal District Council to have taken into consideration - While Simonelli expressed concern that issues of public safety, public health, ecology and environmentally sensitive areas were irrelevant, the court held that those areas of concern were relevant and open to consideration by the Council - See paragraphs 78 to 80.

Land Regulation - Topic 2693

Land use control - Zoning bylaws - Enforcement - Considerations - A Municipal District refused Simonelli's application to amend its Land Use Bylaw to change selective areas of his land designated as floodway to flood fringe - Simonelli applied for judicial review - The Alberta Court of Queen's Bench allowed the application - There were statements made in the Staff Planning Report and in the oral presentation by the Municipal Planner which were irrelevant and inaccurate - With no reasons provided by the Municipal District Council for its decision, it was impossible to determine what weight, if any, was given to such inaccurate considerations and evidence - It followed that the Council's decision could not be upheld as being reasonable based on the inaccuracies and irrelevant material and considerations provided to it - The only manner in which the matter could be resolved was to provide Simonelli with a new public hearing for his redesignation application - See paragraphs 82 to 99.

Municipal Law - Topic 1586

Powers of municipalities - Exercise of powers - Prohibition against fettering of - A Municipal District refused Simonelli's application to amend its Land Use Bylaw to change selective areas of his land designated as floodway to flood fringe - Simonelli applied for judicial review - Simonelli argued that the Municipal District Council failed to make the amendment based on the evidence and considerations put before it and instead referred to the policy and position of Alberta Environment - In effect Simonelli submitted the Council fettered its discretion by mechanically applying the policy of Alberta Environment - The Alberta Court of Queen's Bench held that the issue of fettering was not properly before the court as it did not fall under any ground set out in the Originating Notice of Motion and was time barred - In any event, the court did not see that the Council abandoned its own discretion and relied entirely on the policy of Alberta Environment - While two Council members did reference a desire to be consistent with the policies of Alberta Environment, the court was not satisfied that any Council members voted against Simonelli's application on that basis alone - Council members exercised their own discretion and not that of Alberta Environment - See paragraph 81.

Municipal Law - Topic 1682

Powers of municipalities - Judicial review of exercise of powers - Scope of powers of judicial review - A Municipal District refused Simonelli's application to amend its Land Use Bylaw to change selective areas of his land designated as floodway to flood fringe - Simonelli applied for judicial review - At issue was whether the Council of the Municipal District based its decision on relevant evidence before it - The Alberta Court of Queen's Bench applied the pragmatic and functional approach and concluded that the proper standard of review was one of reasonableness - See paragraphs 60 to 67.

Municipal Law - Topic 1690

Powers of municipalities - Judicial review of exercise of powers - Limitation period - A Municipal District refused Simonelli's application to amend its Land Use Bylaw to change selective areas of his land designated as floodway to flood fringe - Simonelli applied for judicial review - The Originating Notice of Motion stated that the Municipal District did not review and consider relevant evidence and considered irrelevant evidence and matters not in evidence - In his written brief, Simonelli raised the additional issues of: (a) receipt of material outside of hearing, without adequate disclosure; (b) failing to comply with statutory/bylaw procedural requirements; (c) determining matters outside the statutory mandate; and (d) inadequate reasons - The Alberta Court of Queen's Bench held that the additional grounds in (b) and (c) dealt with either a procedural irregularity or the "manner of passing" the impugned resolution and were therefore barred by the 60 day limitation period in s. 537 of the Municipal Government Act (MGA) - The ground set out in the Originating Notice of Motion did not fall under s. 537, but rather fell under the principles of natural justice, and the Originating Notice of Motion was filed within the six month limitation period in rule 753.11(1) - The additional issue raised in (a) also fell under the purview of the principles of natural justice and partly under the purview of the ground set out in the Originating Notice of Motion - That additional ground, although not set out in the Originating Notice of Motion, was therefore properly before the court - Similarly, the additional ground in (d) was not barred by s. 537 of the MGA or rule 753.11(1) and could be argued on the judicial review - See paragraphs 46 to 58.

Cases Noticed:

Friends of the Athabasca Environmental Association et al. v. Alberta Public Health Advisory and Appeal Board et al. (1994), 153 A.R. 225 (Q.B.), refd to. [para. 53].

Korogonas v. Andrew et al. (No. 1) (1992), 128 A.R. 381; 1 Alta. L.R.(3d) 316 (Q.B.), refd to. [para. 56].

Atkins et al. v. Calgary (City) (1994), 162 A.R. 97; 83 W.A.C. 97 (C.A.), refd to. [para. 68].

Valdun Developments Ltd. v. Calgary (City) (1997), 200 A.R. 19; 146 W.A.C. 19 (C.A.), consd. [para. 68].

Petherbridge v. Lethbridge (City) et al. (2000), 274 A.R. 159 (Q.B.), refd to. [para. 68].

Jatoi v. Subdivision and Development Appeal Board (Willow Creek) (Municipal District) et al., [2000] A.R. Uned. 76 (C.A.), refd to. [para. 72].

Statutes Noticed:

Municipal Government Act, R.S.A. 2000, c. M-26, sect. 537 [para. 39].

Counsel:

David A. Thurmeier, for the applicant;

Joanne M. Klauer, for the respondent.

This application was heard on June 30, 2003, before Park, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on January 22, 2004.