A decision for an appeal against a municipal stop order that shutdown a Banff home where Alberta Health Services found more than 40 beds and mattresses will see enforcement of the order stayed until May 2023.
The Town’s Development Appeal Board (DAB) upheld the order in a Tuesday (Dec. 6) hearing, but agreed to delay enforcement allowing the homeowners of 321 Squirrel Street – Gail Morgan and Janna-Joy Goff – additional time to apply for a development permit and bring the home up to compliance.
The Town of Banff’s development services manager Dave Michaels argued the appellant had every opportunity to apply for a permit seeking development approval for unapproved bedrooms, kitchens and plumbing supporting unapproved dwellings in the home.
“I’d say that option exists whether the stop order is in place, in fact, it’s existed since 2017 when we first became made aware of this property,” he said. “If the appellant wants to come to us and submit a development permit application, we will work with them to help them with an application that meets all land use bylaw requirements.
“However, the stop order requires the removal of the unapproved development that was done without a permit and continues to exist at the property, with the intention of adding additional dwellings and additional bedrooms beyond what was approved in 1988, and has not received approval since.”
The home has a history of operating unapproved bedrooms, with the Town having previously filed a stop order in 2017. It was rescinded in 2018 once the order was complied with.
Goff and Morgan recently filed an appeal with the DAB after being issued a second stop order for the home Aug. 22, on the grounds that no unapproved dwellings had been created or used.
Parks Canada approved plans for the home in 1988 with seven bedrooms and two dwelling units, intended for two families one on lot, with two kitchens and a sink and counter in a greenhouse.
There are no records of Parks Canada development approvals between December 1988 and May 31, 1990, when the Town of Banff Land Use Bylaw came into effect.
The only permit applications on record for the home from the time the Town’s bylaw came into effect to the 2017 inspection was for an addition of a bay window in July 1990 and the development of a mechanical enclosure.
Prior inspections by AHS and the municipal compliance officer also found unapproved bedrooms were in use Nov. 2019 and March 2020.
In April 2020, the owner asked the Town if they could use 11 rooms to house 16 people to help with isolation and physical distancing recommendations during the COVID-19 pandemic. The Town outlined additional bedrooms would need a valid development permit, noting only seven rooms were approved.
In 2021, the homeowner submitted discussion plans to the Town seeking to add a mezzanine level and increase gross floor area of the home, as well as adding another stovetop and oven exhaust to create an additional, standalone dwelling.
The homeowners were advised that the addition of a mezzanine would likely be challenged, and again, stated a development permit would be required to consider any developments.
“When we went in for our inspections [in August 2022], we had found they had done exactly what they told us they would like to do, however they didn’t get a permit to do it,” said Michaels.
The appellant’s lawyer, Rick Grol, argued Morgan did not intend to create additional dwellings and they were not being used as such, and questioned the validity of the stop order.
He cited a section of the Municipal Government Act which requires notice of a stop order be given the same day the order is issued.
“In this case, the stop order was given to Ms. Gail Morgan, as well as Jana-Joy Goff who is listed as the sole leaseholder of this particular property,” said Grol.
“I take the position that if you have a stop order and the municipality chooses to give notice to more than one person, notice must be given to all people on the same day.”
Morgan received the notice in-person Aug. 22, the same day the order was issued, and emails were sent to both parties. However, records show Goff not having received the notice until the following day due to the notice being sent to an invalid email address.
Michaels noted the Town’s development compliance officer, Rick Williams, reached out to Morgan for a valid email address that same day upon realizing the email bounced back. Notice was also sent to both parties via registered mail, though both notices were returned to sender.
The mailing addresses provided on the homeowners’ most recent development application dated Nov. 16, to remove two bathrooms in compliance with the stop order, shows Goff and Morgan to have different mailing addresses than what the Town acquired through land titles and tax rolls.
“Had they submitted valid and up-to-date information on their permit applications, then we would have been able to send them that information,” said Michaels.
Previous attempts at DAB hearings were pushed back, starting Oct. 6 after the appeal against the stop order had been received by the Town on Sept. 15. The second date of Oct. 27 saw the hearing postponed due to Goff and Morgan retaining Calgary-based lawyer Grol the day before the hearing.
The Nov. 18 date tossed the hearing upside down after Grol argued due to the DAB being a quasi-judicial tribunal that is meant to be impartial. It led to the Town’s legal counsel Reynolds Mirth Richards and Farmer not being able to argue its case, while the Town’s director of planning and development Darren Enns was removed from the board’s secretary position because of his role with the Town.
Board member Ray Horyn also recused himself since his wife Kori Woodard works for AHS and had previously written a 2020 inspection report for the Squirrel Street home.
The Town issued its stop order Aug. 22 after Alberta Health Services filed an enforcement order Aug. 4 after it deemed the house to be exceeding the 16-person occupancy limit following a July 28 inspection.
The municipal stop order directed Goff and Morgan to stop allowing people to live in the unapproved rooms and have the property only use its approved as-built layout within 45 days of the stop order.
The order was meant to be heard in Canmore Provincial Court in November but was adjourned to March 2023.
The health inspection report said complaints came from bedrooms without windows, filthy kitchens, flies and potentially broken insect screens, a kitchen shared by 25 people and a bathroom shared by 12 people.
The report stated the landlords initially said only 16 tenants lived in the home, but it was thought there could be more than 16 people since meals were subsidized by a restaurant. The inspection found 42 beds and/or mattresses counted, with it believed 35 were being used at the time.
The Town’s 2022 assessment roll shows the home is assessed at roughly $1.7 million.
By Jessica Lee, Local Journalism Initiative Reporter
Original Published on Dec 07, 2022