BANFF – Banff town council is laying down an early challenge to Parks Canada, approving Banff’s downtown pedestrian zone for this summer complete with restaurant patios and sidewalk seating.
Following a 70-minute in-camera meeting on Wednesday (Jan. 17), council voted to move ahead as planned for this year with the pedestrian zone from the May long weekend until Thanksgiving weekend, despite Parks Canada saying commercialization of public spaces with restaurant patios and retail kiosks flouts national park policy and law.
Council, which has had legal advice in the past in support of sidewalk patios, is getting a supplementary legal opinion and continuing discussions with Banff National Park superintendent Sal Rasheed on the controversial matter.
“I think the catchphrase of the day will be ‘see you in court’,” said Coun. Ted Christensen, who was one of two councillors who voted in opposition of moving ahead with the summer pedestrian zone, in part due to Parks Canada's stance.
Mayor Corrie DiManno said patios have been allowed on Banff Avenue for the past four years, adding the municipality has also had a sidewalk seating policy that allows for patios on public lands since 2010.
“So, in my mind, it is extremely reasonable to continue with patios for one more summer to give that certainty to the business community, to residents, as well as to visitors while we continue to resolve this matter with Parks Canada,” she said.
While conversations with Parks Canada have been constructive, DiManno said the Town still needs clarity when it comes to the federal agency’s interpretation of the new Banff National Park management plan, specifically as it relates to the definition of commercial development.
She said the municipality believes the Canada National Park Act legislates commercial space through gross floor area, which was measured through the four walls and roof of every commercial building – and commercial space has been allocated to only buildings since 1998.
“We need time to unpack this fundamental difference in interpretation, and first and foremost, we will continue to have those discussions with Parks Canada,” said DiManno.
“I am hopeful that we can resolve this issue with more time because patios help to make a more enjoyable experience for residents and visitors in Banff.”
This latest drama between the Town of Banff and Parks Canada unfolded when Rasheed sent an 11th hour letter to council a day ahead of council’s Jan. 10 budget meeting, when funds for this summer’s pedestrian zone were to be allocated.
Parks Canada has ultimate authority over all land use and planning decisions in the national park townsite.
In an interview with the Outlook last week, Rasheed said Parks Canada is not against the pedestrian zone, but the main concern is expansion of commercial restaurants onto public sidewalks and roads in line with commercial development rules in place since the 1990s.
“The pedestrian zone and the people walking, people enjoying all that the pedestrian zone has to offer is not the issue that Parks has taken,” said Rasheed.
“In this particular case, we’re talking about commercial development in a zone that does not really facilitate commercial development, it’s public space, and that’s really the heart of the matter.”
David Matys, vice president of finance and operations for Banff Lake Louise Tourism (BLLT), said the tourism marketing organization supports the pedestrian zone, preferably with outdoor patio and restaurant seating.
During Wednesday’s budget meeting, he said feedback from visitors shows they love the pedestrian zone, including the outdoor restaurant patios and retail, and they want to see it continue.
“Ideally from our perspective, the pedestrian zone carries forward with those elements and components because they are an important aspect of the visitor experience,” he said.
“We understand there needs to be more conversation with Parks to determine the best path moving forward and we believe the best path forward is to stay the course.”
BLLT’s membership is split on the pedestrian zone, with two-thirds in favour and one-third against.
But with overwhelming visitor support for a car-free downtown experience, Matys said there is a need at this late stage in the game for certainty so businesses can plan for the summer.
He said he believes there is risk to the visitor experience and expectations if the pedestrian zone does not move ahead as planned.
“It will have an impact on visitor sentiment this summer and it will have an impact on our overall reputation,” he said.
In a letter to council, Bow Valley Naturalists (BVN) say they support Rasheed’s position that commercial patios in public spaces skirt the commercial development cap.
They say they are concerned with the Town’s push for more commercial opportunities, pointing to environmental protection land being eyed for housing, and the railway lands redevelopment plan that includes a gondola terminus to pave the way for an aerial gondola to Mount Norquay, despite Parks Canada’s warning it’s not compatible with either the management plan or ski area guidelines.
Reg Bunyan, vice-president of BVN, said as an environmental organization, BVN is neutral on the issue of whether Banff Avenue is seasonally closed to vehicles or remains open to vehicular traffic.
However, he said the group strongly agrees with Rasheed’s view that turning an entire street into cafe seating and store kiosks is not in keeping with the intent of Parks Canada’s commercial cap for the town, in place since the late 1990s.
“The commercial cap was originally instituted to ensure an appropriate balance between community, community housing needs and demands for commercial space – needs that already have become significantly unbalanced due to increasing commercial intensification,” said Bunyan.
Peter Poole, a commercial landlord who benefits from patios in public spaces and a former town councillor, suggested the Town of Banff acquire back some of the unbuilt commercial growth space under the development cap to allow for commercial patios in public spaces.
During the meeting, he suggested acquiring or appropriating commercial square footage slated for the area redevelopment plan for the railway lands, as an example.
“My recommendation is that you work with your talented administration, develop a council resolution to secure the commercial square foot quota that you would need to animate the spaces,” he said.
A 2013 Alberta Court of Appeal Decision over commercial use in public service districts ruled in Parks Canada’s favour, concluding that if there are conflicting or overlapping provisions, the park management plan trumps the Town of Banff’s land use bylaw or other municipal policy.
Poole said the case, heard by Justice Frans Slatter, is clear the park management plan and incorporation agreement prevail over the municipality’s bylaws and was worried the town was “poking the bear” and picking another fight with Parks Canada.
“The implication of the Slatter decision hasn’t been tested for our patios,” he said.
In his interview with the Outlook, Rasheed said Parks Canada’s position is based on Schedule 4 of the Canada National Parks Act, where commercial zones and limits for the national park townsite are fixed in law.
“We’re certainly not suggesting a ban on all commercial development or restaurant patios, but Parks Canada has a very consistent, long-standing approach to managing commercial development,” he said.
“All commercial operators have agreements, licences and established boundaries under which they operate, and we take a lot of time and patience to make sure we try to treat every lessee fairly under the specific terms and conditions of their agreement,” he added.
“Every agreement is different, and the agreement for a small business in the Town of Banff is probably different than an agreement for the Banff Springs Hotel, for example, so comparing everyone equally is akin to comparing apples and oranges.”
Last week, DiManno publicly raised what would happen if council proceeds with sidewalk restaurant patios as part of the pedestrian zone if the Town of Banff has a differing perspective than Parks Canada.
Rasheed didn’t answer that when questioned by the Outlook.
“I’m, you know, not prepared to go there,” he said.
In 2020, the pedestrian zone was created in response to the COVID-19 pandemic to give space for pedestrians to social distance, and also allow for businesses to use public space in order to offset financial impacts from public health measures.
The downtown pedestrian zone, which can see as many as 30,000 pedestrians on a busy summer day, continued as a pilot to support economic recovery and boost visitation in 2022 and 2023 post-pandemic.
