Re-Zoning Alberta: Smart Regulation for Smart Growth · type arguments give rise to residential-industrial buffering, which hides industrial pollution. Through segregation and isolation,

Re-Zoning Alberta: Smart Regulation for Smart Growth

Matti Lemmens*

* Matti Lemmens received her LL.B. with an environmental specialization from Dalhousie University. Her degree included academic exchanges at Oxford University, Vrije Universiteit Amsterdam, and the University of Alberta. She is currently articling at the Calgary office of Borden Ladner Gervais LLP. She would like to thank Howard Epstein and Chad Manley for their helpful contributions to the drafting of this article.

La contribution du zonage euclidien prédomine tou-jours les outils de planification urbaine dans plusieurs municipalités canadiennes, ce qui résulte en une concen-tration démesurée sur la gestion des terres. Cet article se concentre sur les municipalités albertaines et les réformes récentes qui sont le produit de nouvelles politiques coor-données par la province. Plus spécifiquement, l’article se penche sur la ville d’Edmonton et son nouveau plan municipal et intermunicipal innovateur. L’article offre un survol des lois fédérales, provinciales et municipales sur l’aménagement du territoire. Le Gouvernement de l’Alberta fut le premier au Canada à adopter des objec-tifs pour l’émission de carbone et a encouragé l’adoption des stratégies de planifications environnementales afin de conserver et utiliser l’énergie de façon efficace. L’auteure fait une évaluation des pratiques courantes telles qu’implantées par la ville d’Edmonton et déter-mine que l’emploi des techniques de zonage euclidien mène l’utilisation des terres à aller à l’encontre des objec-

tifs environnementaux. Des techniques d’aménagement alternatives, telles un code basé sur la forme et le zonage basé sur la performance, sont examinées et mises de l’avant comme de meilleures méthodologies pour attein-dre les objectifs environnementaux promulgués par l’Assemblée législative de l’Alberta. L’auteur analyse les lois actuelles sur l’aménagement du territoire et suggère qu’il est bien possible d’incorporer les pratiques alterna-tives de code basé sur la forme et le zonage basé sur la performance dans le cadre euclidien. Ultimement, les attitudes politiques non informées font qu’une réforme complète du cadre euclidien soit improbable. Toutefois, les outils pour une croissance intelligente sont disponibles et les changements doivent avoir lieu dans les statuts et les plans municipaux.

Euclidean zoning is a dominant planning tool for many Canadian municipalities, resulting in an overbearing focus on managing land uses. This article assesses recent reforms made to a provincially-coordinated land use framework in the Canadian province of Alberta. Several key federal, provincial, and municipal planning laws are relevant to this process, and are outlined in the article. The Government of Alberta was the first in Canada to adopt carbon emissions targets, subsequently revising its climate change strategy to encourage environmental planning strategies which conserve and use energy effi-ciently. The article evaluates current practices, as imple-mented in Edmonton, and concludes that the Euclidean zoning technique allocates land use in a manner incon-sistent with these environmental goals. Alternative plan-ning techniques, including form-based code and perfor-mance-based zoning, are put forward as methodologies better suited to the environmental goals promulgated by

the Alberta Legislature. Historical development of plan-ning techniques and examples of their application in Canada are discussed. The article then analyzes currently available planning legislation, and suggests that it is pos-sible to incorporate the alternative planning practices of form-based code and performance-based zoning into the Euclidean framework. It is, however, unlikely that the Euclidean framework will be completely overhauled due to entrenched political attitudes. Nevertheless, the tools for smart growth are available, and for the sake of the environment, municipal development bylaws and plans must evolve.

1. INTRODUCTION

2. ALBERTA’S 2008 CLIMATE CHANGE STRATEGY

3. THE PLANNING FRAMEWORK IN ALBERTA

3.1 The Federal Level

3.2 The Provincial Level

3.3 The Municipal Level

3.4 Euclidean Zoning in Depth

4. ZONING ALTERNATIVES

4.1 Form-Based Code

4.2 Performance-Based Zoning

5. HYBRID ECO-PLANNING IN ALBERTA

6. CONCLUSION

leMMens Volume 5: Issue 1 117

Smart growth needs smart regulation. Nevertheless, the dated tool of Euclidean zoning1 still dominates the planning tool palettes of many Canadian municipalities, including those in the province of Alberta. As practiced, this type of zoning is failing its cities:

both its processes and its focus display an insufficient ability to tackle the environmental effects of urban sprawl and industrial development. This trend is apparent throughout the province, though the experience of the Capital Region of Edmonton (“Capital Region”) provides a par-ticularly instructive example.2 By segregating rather than mixing land uses, the Capital Region has rendered itself ripe for environmental degradation. Communities are removed from the negative impacts of industry, leaving residents unaware of the environmental consequences of industrial effluent. Strict Euclidean zoning also forces residents to travel longer distances for commercial purposes and work, consuming unnecessary energy and promoting urban sprawl. For Albertan society to achieve better sustainability, a viable marriage must be forged between the urban and the natural environments.

1 Euclidean zoning features a segregation of land uses into specified geographic districts and dimensional standards stipulating limitations on the magnitude of development activity that is allowed to take place on lots within each type of district. Standard land use districts in Euclidean zoning include residential (single-family), residential (multi-family), commercial, and industrial. Mixed uses within each district are usually heavily prescribed. For instance, residential districts typically prohibit commercial or industrial uses.

2 Alberta, Capital Region Integrated Growth Management Plan Project Team, Report of the Capital Region Integrated Growth Management Plan Project Team: Working Together (Edmonton: Government of Alberta, 2007) at 2 [Capital Region Integrated Growth Management Plan]. The Alberta Capital Region comprises Edmonton and its surrounding twenty-four municipalities.

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This article argues that Alberta’s environment is harmed significantly by land use tech-niques as currently implemented. The focus will be on the City of Edmonton (“Edmonton”) as a typical Albertan example, and in many respects, also a typical Canadian example. Its planning tools are theoretically and practically outdated because they undermine the envi-ronmental policies currently espoused by the Albertan government. The Alberta Legislature was the first to adopt legislation regarding the reduction of greenhouse gas emissions, under its Climate Change and Emissions Management Act,3 and other provinces are poised to follow suit. The Canadian Federal Government is also in the process of implementing greenhouse gas reduction targets, with several other provinces coordinating similar measures.4 Despite grand environmental objectives, the combination of weak and vaguely worded legislation with physical inaction has plagued Alberta, a province that nevertheless stubbornly proclaims its green-policy progressiveness.5

Alberta’s 2008 Climate Change Strategy is based on three broad themes: (1) conserving and using energy efficiently; (2) implementing carbon capture and storage; and (3) greening energy production.6 Under the first theme, “conserving and using energy efficiently”, the province will “[p]rovide capacity building support to municipalities and other climate change partners to identify emission reduction strategies including land use planning and sustainable develop-ment initiatives for inclusion in appropriate municipal plans and bylaws.”7

Yet throughout Alberta, municipal development plans and bylaws employ planning methods which are in near-direct contradiction with the 2008 Climate Change Strategy.8 There is room for improvement in this area of the law, and changes are desperately needed to ensure the protection of the environment. The Province of Alberta has reconfigured its Land Use Framework and Edmonton is currently crafting and reconfiguring its development plans, both on an inter-municipal/regional and a municipal level. The Alberta Capital Region Integrated Growth Management Plan9 and The Way We Grow: Municipal Development Plan10 fail, however, to take effective measures to secure adherence to the policy directives set forth in the 2008 Climate Change Strategy.11

By continuing the traditional failures of pure Euclidean zoning, Edmonton, the heart of Alberta’s Capital Region, continues to neglect the environmental consequences. NIMBY12-

3 Climate Change and Emissions Management Act, S.A. 2003, c. C-16.7, as am. by S.A. 2007, c. 4.4 Canada, Environment Canada, Turning the Corner: An Action Plan to Reduce Greenhouse Gases and Air

Pollution (Ottawa: Public Works and Government Services, 2008).5 “Alberta Minister Rejects Hard Emissions Targets” CBC News (24 May 2007), online: CBC News

<http://www.cbc.ca/canada/edmonton/story/2007/05/24/targets-alberta.html>.6 Alberta, Alberta Environment, Alberta’s 2008 Climate Change Strategy: Responsibility, Leadership / Action

(Edmonton: Alberta Environment, 2008) [2008 Climate Change Strategy].7 Ibid.8 2008 Climate Change Strategy, supra note 6. 9 Capital Region Integrated Growth Management Plan, supra note 2. 10 City of Edmonton, The Way We Grow: Municipal Development Plan, 15 October 2008 [Edmonton

MDP]. 11 2008 Climate Change Strategy, supra note 6. 12 “Not In My Backyard.”


type arguments give rise to residential-industrial buffering, which hides industrial pollution. Through segregation and isolation, traditional Euclidean zoning’s laissez-faire approach to the economy frees the booming natural resource sector to wreak havoc upon the environment. The energy sector continues to grow practically unencumbered by residential community back-lash because the effects of energy sector infrastructure lie beyond the purview of many com-munities. Suburbia proceeds to expand in the Capital Region, as evidenced by the purpose behind the inter-municipal plan: to ensure that municipalities will have an effective method of dealing with development as “fringe areas” between municipalities continue to disappear.13 However, the negative effects of these development trends on the environment could be miti-gated through alternative zoning techniques.

Alternative forms of zoning offer an approach which goes beyond focusing solely upon land use. One such method is form-based code, which provides a manner of introducing mixed use that contextually re-draws the landscape to promote more environmentally sus-tainable practices among residents. Unlike Euclidean zoning, form-based code designates the appropriate form and scale of development rather than simply making distinctions in land use types. Form-based code frequently relies upon building form standards – sets of enforceable design regulations for controlling building types and how they impact the public realm. Form-based code thus involves a strong element of public input and participation.

A second alternative form of planning is performance-based zoning. This type of zoning uses performance-based or goal-oriented criteria to establish review parameters for proposed municipal development projects. Performance zoning often utilizes a “points-based” system whereby a property developer can apply credits toward meeting established zoning goals by selecting from a range of compliance options, such as building affordable housing units, and mitigating certain environmental impacts. Performance zoning can avoid the sometimes arbi-trary nature of the Euclidian approach, and can foster municipal development that meets certain standards based on more environmentally-sound metrics than those currently relied upon under the Euclidian zoning system in Edmonton. Incentive zoning, a form of perfor-mance-based zoning, encourages developers to meet certain standards and promotes, through subsidization, development projects which are sensitive to their ecological contexts.

This paper will assess the relative compatibility of Euclidean zoning with Alberta’s 2008 Climate Change Strategy14 goals, and demonstrate that there is much to be learned from alter-native zoning methods – specifically, the aforementioned form-based code and performance-based zoning. These alternative zoning practices are more environmentally suitable and should be more readily adopted in the future development plans contemplated by the Alberta Capital Region Integrated Growth Management Plan15 and the Edmonton MDP.16 Under the malleable Municipal Government Act,17 implementing these environmental strategies would be relatively smooth, as the provisions governing their adoption are already available. Moreover, they could be implemented within the dominant yet adaptable Euclidean framework, as the latter system

13 Capital Region Integrated Growth Management Plan, supra note 2 at 16.14 2008 Climate Change Strategy, supra note 6.15 Capital Region Integrated Growth Management Plan, supra note 2.16 Edmonton MDP, supra note 10.17 R.S.A. 2000, c. M-26.


of land use planning is unlikely to be replaced wholesale due to a lack of political urgency. Municipal development plans and bylaws are the most useful engines for reforming land use planning paradigms, and thus moving Alberta in the direction of smarter growth. A change is accordingly needed in local political attitudes toward planning practices.

2. ALBERTA’S 2008 CLIMATE CHANGE STRATEGY

The primary political mandate in Alberta is pro-growth.18 Yet accommodating the province’s unprecedented economic expansion in recent years has put extensive stress on the environ-ment’s ability to cope with economic and demographic demands and pressures. In particular, the character of the growth, stemming from the natural resource sector, is debilitating to its natural surroundings.

As previously noted, the 2008 Climate Change Strategy19 outlines three major goals, the first being to conserve and use energy efficiently – specifically, “[t]o reduce greenhouse gas emissions by transforming how we use energy, applying energy efficient solutions, and con-serving energy.”20 One of the actions outlined pursuant to this goal is to implement land use planning strategies that work toward achieving the reduction of emissions by conserving and using energy efficiently.21

The urban form affects the environment in many ways. Urban environments can impinge both directly and indirectly upon elements in their natural surroundings, including, as ren-dered by Dr. Josef Jabareen, on:

habitat, ecosystems, endangered species, and water quality through land consump-tion, habitat fragmentation, and replacement of natural cover with impervious sur-faces. In addition, urban form affects travel behaviour, which, in turn, affects air quality; premature loss of farmland, wetlands, and open space; soil pollution and contamination; global climate; and noise.22

Given the Alberta Legislature’s mandate, sustainability and the reduction of greenhouse gas emissions can be facilitated in many ways through the application of green design planning concepts for the urban environment.23 Dr. Jabareen identifies seven green design concepts for

18 2008 Climate Change Strategy, supra note 6 at 5 (Premier’s Message).19 2008 Climate Change Strategy, supra note 6.20 Ibid. at 7.21 Ibid.22 Josef Rafeq Jabareen, “Sustainable Urban Forms: Their Typologies, Models, and Concepts” (2006) 26

Journal of Planning Education and Research 38 at 38 [Jabareen]. 23 Carla Chifos, “The Sustainable Communities Experiment in the United States: Insights from Three

Federal-Level Initiatives” (2007) 26 Journal of Planning Education and Research 435 at 435-438. A similar project was undertaken by the U.S. federal government sustainable communities initiative follow-ing the 1992 UNCED, where the President’s Council on Sustainable Development identified five aspects of creating sustainable communities: (1) “the conservation, protection restoration, and management of ‘green infrastructure’, i.e., the network of natural resources and amenities that interfaces the natural ecosystem and the human ecosystem and is the backbone of a balanced natural and built environment;” (2) “the promotion of ‘appropriate land use’ and development patterns following the premises of smart growth strategies;” (3) “the ‘revitalization’ of declining metropolitan and rural communities by reviv-ing local economic opportunities;” (4) “the diversification and ‘strengthening of rural economies’ to


the urban environment: (1) compactness; (2) sustainable transport; (3) density; (4) mixed land uses; (5) diversity; (6) passive solar design; and (7) greening.24 These green design con-cepts should be adopted in Albertan planning strategies to the greatest extent possible so as to achieve sustainability. Together, the concepts work in tandem and often overlap:

1) “Compactness” limits the surface area of the urban environment, which “can minimize the transport of energy, water, materials, products and people.”25 Three environmental themes emerge from the concept of compactness: (1) rural pro-tection; (2) reduced energy use through combined heat and power schemes; and (3) reduced greenhouse gas emissions by minimizing transportation logistics over long distances.26

2) “Sustainable transport” can be described as incorporating the Polluter Pays Principle:27 in other words, it is a form of transport that internalizes and mini-mizes its own environmental impacts. It can be implemented via accessible and efficient transportation corridors, and emphasizing more environmentally-friendly transportation technologies.

3) “Density” refers to the proportion of people or urban forms to land area. As noted by Jabareen, “[h]igh density and integrated land use not only conserve resources but provide for compactness … ”,28 hence working in a parallel and overlapping manner with the concept of compactness.

4) “Mixed land uses” encourage a variety of “land uses to locate in close proxim-ity to one another and thereby decrease the travel distances between activities,”29 accordingly, again, contributing toward compactness.

5) “Diversity” encourages variety through a multitude of factors, including an array of “housing types, building densities, household sizes, ages, cultures, and incomes;”30 entire neighbourhoods can form in small cores with great diversity, reducing transportation needs.

6) “Passive solar design” minimizes energy consumption by providing for the maximization of energy absorption through, for example, the orientation of

improve rural communities and preserve rural landscapes;” (5) “the ‘conservation of resources’ through waste minimization techniques including recycling and reuse as well as the promotion of eco-industrial development.”

24 Jabareen, supra note 22 at 38-43.25 Ibid. at 39.26 Ibid. at 40.27 Rio Declaration on Environment and Development, UNCED Doc. A/CONF.151/5/Rev.1, June 13, 1992,

31 I.L.M. 874 at Principle 16 (The Polluter Pays Principle requires the internalization of the costs of the environmental effects of a product or service into its purchase price so as to minimize its external effects).

28 Jabareen, supra note 22 at 41.29 Ibid. 30 Ibid. at 42.

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buildings.31 As Jabareen points out, “[i]t is assumed that design, siting, orien-tation, layout, and landscaping can make the optimum use of solar gain and microclimatic conditions to minimize the need for space heating or cooling of buildings by conventional energy sources.”32

7) Greening involves conserving and enhancing natural landscapes within the urban environment. Jabareen notes several benefits:

(1) contributions to maintenance of biodiversity through the conservation and enhancement of the distinctive range of urban habitats; (2) amelioration of the physical urban environment by reducing pollution, moderating the extremes of the urban climate, and contributing to cost-effective sustainable urban drainage systems; (3) contributions to sustainable development to improve the image of the urban area; (4) improvement of the urban image and quality of life; and (5) increasing the economic attractiveness of a city and fostering community pride … Finally, green-ing aims also to preserve and enhance the ecological diversity of the environment of urban places.33

These environmental design concepts can be translated into effective planning and work in tandem with a range of existing ecological guidelines, including (1) thinking regionally; (2) planning for the long term and the unexpected; (3) conserving resources; (4) retaining large, connected areas; (5) compensating for development effects; and (6) working with each area’s ecological potential.34 By more actively embracing these design concepts, Albertan urban plan-ning would enable efficient use and conservation of energy, thus meeting the needs of the 2008 Climate Change Strategy.35 The current planning framework in Alberta fails, however, to incorporate these ecological guidelines and underlying design concepts – thereby setting the stage for rapid environmental degradation.

3. THE PLANNING FRAMEWORK IN ALBERTA

3.1 The Federal Level

The implications of federal legislation upon the municipal planning framework of Albertan municipalities are not the focus of this paper. A brief mention should be made, however, of federal environmental legislation that impinges upon Albertan urban planning. The legislation most relevant to the goals of the 2008 Climate Change Strategy36 is the Canadian Environmental Assessment Act, the purposes of which include promoting sustainable development, avoiding significant adverse effects on the environment by acting prospectively, and ensuring coopera-tion and coordination.37 This Act applies to projects involving a federal authority (such as the Federal Department of Fisheries or Transport Canada), and its application is triggered under

31 Ibid.32 Ibid.33 Ibid. at 43.34 Partially adapted from Virginia H. Dale et al., “Ecological Principles and Guidelines for Managing the

Use of Land” (2000) 10:3 Ecological Applications 639 at 641.35 2008 Climate Change Strategy, supra note 6. 36 Ibid.37 Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 4.

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Section 5, meaning that the project (as defined in Section 2) involves a federal funding or regulatory decision, the federal government as a project proponent, or a transfer of interest in federal lands. This Act ensures that projects are approved for development only after the relevant environmental considerations have been assessed and the benefits of the development outweigh the corresponding environmental degradation. Given its limited triggers, however, it only touches on a narrow proportion of development projects. Most of its applications revolve around large-scale industrial projects, leaving commercial and residential projects, along with their cumulative impacts on a given area, relatively outside its reach.

Other relevant legislation includes, but is not limited to, the Canadian Environmental Protection Act,38 Migratory Birds Convention Act,39 Species at Risk Act,40 Fisheries Act,41 and the Navigable Waters Protection Act.42 However, their effects on municipal planning are relatively minor.

3.2 The Provincial Level

The interaction between municipalities and the Province of Alberta is relevant to the core dis-cussion in this paper. Most of this interaction occurs through the Municipal Government Act.43 There are, however, other ways by which provincial law imposes planning requirements upon Edmonton, including those subjects falling under Section 92 of the Constitution Act, 186744 – mainly Subsection 92(13) property and civil rights within the province, and other relevant environmental legislation, such as the Environmental Protection and Enhancement Act,45 Water Act,46 and the Climate Change and Emissions Management Act.47

Under the authority of the Environmental Protection and Enhancement Act,48 environmen-tal impact assessments are required for proposed projects. Once again, similar to the federal legislation, the Act applies to large-scale industrial development projects, rather than to residen-tial or smaller-scale commercial projects. The federal and provincial environmental assessment schemes are coordinated under the Canada-Alberta Agreement for Environmental Assessment

38 S.C. 1999, c. 33.39 S.C. 1994, c. 22.40 S.C. 2002, c. 29.41 R.S.C. 1985, c. F-14.42 R.S.C. 1985, c. N-22.43 Supra note 17. 44 (U.K.), 30 & 31 Vict., c. 3, s. 92, reprinted in R.S.C. 1985, App. II, No. 5. 45 R.S.A. 2000, c. E-12.46 R.S.A. 2000, c. W-3.47 Supra note 3.48 Supra note 45.


Cooperation.49 No effective legislation yet mandates a cumulative impact assessment of land use development,50 despite increasing receptivity to this proposal.51

In 1995, Alberta reformed its planning legislation and repealed the Planning Act,52 consol-idating planning matters into the Municipal Government Act.53 The planning and development provisions are located under Part 17, which requires the balancing of economic and planning objectives, as outlined at Section 617:

(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.54

Any Albertan statutory plan, land use bylaw, subdivision decision, or development deci-sion by a municipality made under the authority of this Act can be overridden, if it conflicts with Section 617, by one of several provincial government agencies, including the Canada Natural Resources Conservation Board, Canada Energy Conservation Board, Alberta Energy Conservation Board, or Alberta Utilities Commission, pursuant to Subsection 619(1). Unfortunately, as a result of this provision, municipalities are left with little effective control over the use of local land, as these decisions are easily controlled by these regulatory agencies. This effectively removes the local right – dependent as it may be on the knowledge, willingness and power of local residents to act upon it – to protect the environment from the degradation brought on by natural resource development. In the specific case of Edmonton, the Industrial Heartland located just east of the city bears the brunt of this development load, as it sees much of the natural resource development in the Capital Region.55

It has been noted that “[o]ne of the critical political challenges to state-level reform is the disparity in interests, values, and resources between rural and urban communities.”56 As Alberta embarks upon a state-level planning project through its Capital Region Integrated

49 Canada, Canadian Environmental Assessment Agency, Canada-Alberta Agreement for Environmental Assessment Cooperation (Ottawa, 2005).

50 Alberta, Land Use Framework, Pub. No. I/321 (Edmonton, 2008) at 3 [Alberta Land Use Framework]. However, it should be noted that cumulative effects management has been endorsed on a regional level for the impacts of development on land, water, and air under this framework.

51 Alberta, Land-Use Framework Workbook Summary Report, Pub. No. 1/281 (Edmonton: The Praxis Group, 2007) at 19 [Alberta Land Use Framework Summary].

52 R.S.A. 1980 c. P-9, repealed.53 Supra note 17. In the amalgamation, several provisions were eliminated, including the provisions regard-

ing protection of agricultural lands, and mandatory protections of fringe boundaries adjacent to urban lands (five mile buffer). See also Capital Region Integrated Growth Management Plan, supra note 2 at 18.

54 Supra note 17, s. 617.55 Alberta, Alberta’s Industrial Heartland Complementary Area Structure Plans: Background Report (Edmonton:

Government of Alberta, 2007) at 1 [Alberta Industrial Heartland Area Structure Plans].56 Elisabeth M. Hamin, Margaret Ounsworth Steere & Wendy Sweetser, “Implementing Growth

Management: The Community Preservation Act” (2006) 26:1 Journal of Planning Education and Research 53 at 53.


Growth Management Plan,57 the interests of both Edmonton and of the surrounding rural areas must be balanced.58 This inter-municipal plan will be enacted pursuant to Section 631 of the Municipal Government Act.59 The plan will coordinate municipal interests to share utility infrastructure, and set up a regional governance board to decide on land use matters. As the municipalities continue to grow into one another and fringe areas disappear, it becomes espe-cially imperative that land uses be coordinated.

The Alberta Land Use Framework60 was revised in 2008 to divide the province into seven regions that will each coordinate their land usage with the supervision of the provincial gov-ernment,61 and will guide Edmonton’s municipal development plan, among others. In 1948, following the Leduc oil discovery, the first Albertan land use framework was adopted, divid-ing the province into Green and White Areas, whereby forest production, wildlife manage-ment, and recreation were permitted within Green Areas, and agriculture and settlement uses were permitted within White Areas.62 Then, in 1977, the Policy for Resource Management of the Eastern Slopes identified the priority uses of the Eastern Slopes to be watershed integrity, public recreation and tourism; natural resource development was permitted only where com-patible with this purpose.63 In the continuous process of reformulating the land use frame-work without overhauling it, participants who helped to develop the current Alberta Land Use Framework64 emphasized the need for an environmental focus,65 and stressed that economic growth should be balanced with environmental needs.66 The Summary Report also urged the Government of Alberta to take a more active role in planning by directing municipalities in their planning processes.67 In order to direct these changes toward sustainable development, the Pembina Institute recommends the enactment of a new planning law, devised through a consultation with all three levels of government, First Nations, and the public.68 Unfortunately, it is unlikely that the Albertan government will heed such advice, as devising a new planning law would require great legislative effort and overhaul, the political will for which does not exist. Also, most of the changes suggested for Edmonton’s municipal development plan have

57 Capital Region Integrated Growth Management Plan, supra note 2.58 Richard F. Babcock, Billboards, Glass Houses and the Law and Other Land Uses (Colorado Springs:

McGraw-Hill Book Company, 1977) at 19 (Regional planning has been heavily criticized. As Richard Babcock notes, “it forces citizens to swallow not only a reallocation of decision-making but a new gov-ernmental unit as well. It fails to deal with – indeed it may exacerbate – the conflicts between the region and the rest of the state.”).

59 Supra note 17.60 Alberta Land Use Framework, supra note 50.61 Ibid. at 3.62 Ibid. at 6.63 Ibid.64 Ibid.65 Alberta Land Use Framework Summary, supra note 51 at 7.66 Ibid. at 33.67 Ibid. at 32.68 Alberta, Alberta Sustainable Resource Development, Alberta Land-Use Framework: Understanding Land

Use in Alberta (Edmonton: Alberta Sustainable Resource Development, 2007) at 22 [Understanding Land Use in Alberta].


already been made, and the Albertan government will therefore likely take little notice of the changes recommended under the Alberta Land Use Framework69 as a result of the poorly coor-dinated timelines.

3.3 The Municipal Level

Pursuant to Section 632 of the Municipal Government Act,70 a municipality, as defined within, is mandated to enact a municipal development plan. Edmonton enacted its last plan (“Plan Edmonton”), on 31 August 1998, as Bylaw 11777 (with amendments up to 10 September 2008).71 All bylaws are to work in accordance with the municipal development plan. Section 622 of the Act also authorizes the enactment of land use policies through an Order-in-Council, with which municipal development plans must be consistent. The land use policy goals of par-ticular importance to this discussion include the maintenance and enhancement of the natural environment, the facilitation and promotion of land use patterns that coordinate efficient development, and the efficient use of Alberta’s non-renewable resources.72 Also pertinent to this discussion is Section 632(3)(b)(iii) of the Act, which gives municipalities the authority to address environmental matters within their boundaries.

Edmonton’s new municipal development, The Way We Grow: Municipal Development Plan73 will concentrate on land use, continuing the Euclidean zoning legacy of Plan Edmonton.74 It will also coordinate with the Capital Region Integrated Growth Management Plan75 in order to effect better integration of land use zoning between municipalities within the Capital Region.

In Edmonton and, more broadly, in the Capital Region, Euclidean zoning dominates as the common planning technique under the mandatory land use bylaw.76 Edmonton, in par-ticular, employs the designations of residential, commercial, industrial, and agricultural uses. Civic uses are not considered to be their own category, but are conditionally permitted within other categories. To understand how Euclidean zoning affects the natural environment, the next section will analyze its use and the environmental consequences within Edmonton.

3.4 Euclidean Zoning in Depth

Euclidean zoning is named after Village of Euclid v. Ambler Realty,77 the first case to determine the legality of zoning. This method of zoning has been considered the traditional approach to land planning since its adoption in New York City in 1916 to classify and divide the dif-ferent uses of land within the city, with the goal of keeping poorer immigrant housing away

69 Alberta Land Use Framework, supra note 50.70 Supra note 17.71 City of Edmonton, By-law No. 11777, Edmonton Municipal Development Plan (31 August 1998) [Plan

Edmonton].72 Alberta Industrial Heartland Area Structure Plans, supra note 55 at 9.73 Edmonton MDP, supra note 10. 74 Plan Edmonton, supra note 71.75 Capital Region Integrated Growth Management Plan, supra note 2.76 Supra note 17, s. 639.77 (1972), 272 U.S. 365; 47 S. Ct. 114.


from factories and richer neighbourhoods.78 Euclidean zoning categorizes uses and prescribes development accordingly. The designation of sites is usually done on a large scale, separating and isolating different types of land uses in substantial clusters.79 In Canada, land use bylaws are usually expressed through basic maps designating the land use for large-scale municipal regions. Typically, this type of planning assures residents of stability in land uses, as regulations maintain each type of zone by encouraging particular kinds of development and constraining others. Developments are only permitted in distinct zones which are allocated to certain types of development.

One of the most positive aspects of Euclidean zoning is its predictability. The ability to ensure certainty is a valuable quality for any law, especially for a bylaw that so commonly involves interaction with community members. This type of zoning offers “predictability to landowners and developers because it supplies them with knowledge before the fact regarding permitted and prohibited uses of land.”80 Euclidean zoning’s positive attributes are, however, also its greatest detriments.

The static character of Euclidean zoning comes at the cost of flexibility.81 Traditional zoning has been heavily critiqued as rigid and resistant to change and novel approaches.82 As James Marwedel notes, “Euclidean zoning is often too inflexible to accommodate the irregular boundaries of environmentally sensitive areas.”83 Also, environmentally deleterious activities such as automobile dependency are emphasized, as “[t]he spatial separation of routine and daily functions such as shopping, working, and living requires that people get into their cars for even the simplest trip.”84 Residents are removed from industrial pollution through the segregation of land uses, thereby leaving them unaware of the environmental impacts of pol-lution. For example, the Capital Region Integrated Growth Management Plan85 proposes – even as municipalities with potentially conflicting land use development overtake fringe areas and collide – to continue separating land uses by creating a regional governance board and a large-scale inter-municipal development plan.86 In addition, the limited opportunities for public participation under traditional Euclidean zoning systems do little to educate residents about environmental concerns within, and beyond, their communities.

There are, however, various instruments that have been incorporated into Euclidean zoning since its birth in New York City87 and that provide some degree of flexibility, such as

78 Donald L. Elliott, A Better Way to Zone (Washington: Island Press, 2008) at 9-10 [Elliott]. 79 James Marwedel, “Opting for Performance: An Alternative to Conventional Zoning for Land Use

Regulation” (1998) 13:2 Journal of Planning Literature 220 at 220 [Marwedel]. 80 Ibid. at 221.81 Ibid.82 Rowena E. Moyes, “Affordability and Choice Today (ACT): Regulatory Reform Project – Review of

Performance-Based Zoning: Town of Morinville, Alberta” (Toronto: Canada Mortgage and Housing Corporation, 1998) at 2 [Moyes].

83 Marwedel, supra note 79 at 222.84 Ibid. at 221.85 Capital Region Integrated Growth Management Plan, supra note 2.86 Ibid. at 21.87 Elliott, supra note 78 at 10.


“variances, special exception or special use permits, conditional uses, floating zones, contract zoning, and planned unit developments. Zoning amendments and rezoning are other methods for accommodating change.”88

Denver, Colorado adopted its first zoning ordinance in 1923 and another in 1957; these ordinances grew increasingly complex as varieties within each zone were introduced, or entirely new types of zones were born.89 Euclidean frameworks are indeed prone to becoming complex once a prolific use of variances occurs. This can now be observed in many Canadian cities. The use of multidimensional land use classifications and designations90 can, however, better meet environmental needs by delineating environmental uses within the broader land use catego-ries. Nevertheless, despite these slight infusions of flexibility, the rigidity of grand-scale land use segregation remains a reality hard to shed without infusing Euclidean zoning itself with innovative forms of land use planning. Furthermore, Lane Kendig has argued that all of the exceptions available under Euclidean zoning have left the regulation an “ad hoc administrative decision”,91 rather than a predictive tool, thereby negating its most positive aspect of reliability in application.

The Capital Region serves as a prime example of non-environmentally friendly planning, mainly as a result of Euclidean zoning and local attitudes – whether poorly informed or over-powered by the politically influential. Even preliminary projections of the future of Edmonton include an excessive reliance on Euclidean zoning and outwards expansion. The advent of sustainable, compact building forms seems unlikely, given that they are proposed for recently settled residential zones with populations traditionally resistant to change. These communi-ties are primarily composed of a commuting professional class, the members of which desire single-family dwellings in non-thoroughfare neighbourhoods, and the plans are purely tenta-tive proposals, as stressed in the projected plan itself. When further expansion is mooted, even if in compact form, environmentalist residents and non-governmental organizations often oppose it for its corollary destruction of natural habitats; for example, the Sierra Club recently opposed the Windermere development that would lie just beyond the outskirts of Edmonton, and destroy twelve natural habitats; the Club was thus pleased with City Council’s decision to delay the project.92

Through the Capital Region Integrated Growth Management Plan,93 urban sprawl is evi-denced by the very purpose of such an inter-municipally oriented plan: to coordinate plan-ning as fringe areas disappear. Fringe areas of agricultural land are replaced with suburban development projects, on the outskirts of nearly every edge of the city. Little mixed land use is evident, resulting in poor infill development, minimal density, and the need for long distance transportation due to segregated uses. Greening of industrial zones is unlikely, as large-scale

88 Marwedel, supra note 79 at 221.89 Elliott, supra note 78 at 10.90 Albert Guttenberg, “Multidimensional Land Use Classification and How it Evolved: Reflections on a

Methodological Innovation in Urban Planning” (2002) 1:4 Journal of Planning History 311 at 318.91 Douglas C. Baker, Neil G. Sipe & Brendan J. Gleeson, “Performance-Based Planning: Perspectives from

the United States, Australia, and New Zealand” (2006) 25:4 Journal of Planning Education and Research 396 at 398 [Baker et al.].

92 Bill Mah, “Council slows down huge Windermere housing plan” Edmonton Journal (26 July 2001) B4.93 Capital Region Integrated Growth Management Plan, supra note 2.


zoning rarely accounts for such attention to minute detail. Overall, land in Edmonton remains segregated according to basic land use categories, and the resulting consequences for the envi-ronment are rather bleak.

Euclidean zoning does very little to account for the environment in its planning method-ology. In order to achieve the objectives of the 2008 Climate Change Strategy,94 land use plan-ning needs to be re-examined and improved to conserve and use energy efficiently. Alternative zoning practices are more responsive to environmental concerns, and should be strongly con-sidered as a sensible alternative or complement to the prevalent Euclidean zoning system. To practice sustainable growth, a balance must be struck between effective environmental plan-ning and Alberta’s burgeoning economy. Alternative zoning systems, described in more detail below, can help to bridge this gap.

4. ZONING ALTERNATIVES

Euclidean zoning can serve as a skeletal structure onto which other forms of municipal plan-ning may be grafted. As D.L. Elliott suggests, it could be improved by becoming more flexible with regard to mixed uses, adopting more dynamic development standards, becoming depo-liticized by making more space available for public negotiation, and being regularly updated through scheduled maintenance checks.95 Supplementing Euclidean zoning with alternative forms of land use planning has the potential to emphasize its positive aspects and minimize its downfalls.

Zoning for the environment should be both substantive and procedural in character,96 ensuring that both the content of the built environment and the way that it is achieved are taken into account by municipal planners. The desired zoning in the Alberta Capital Region is qualitative in nature, and there are a variety of alternatives to Euclidean zoning which can help to achieve this goal. Nonetheless, none of these alternatives are advocated in provincial or municipal reports aimed at re-designing either the planning process in the Alberta Capital Region or Edmonton’s municipal development plan.

There is much convergence in the alternatives to Euclidean zoning, as a result of their response to the various negative attributes of Euclidean zoning. Generally, the alternatives advocate that “metropolitan growth should be channelled into developments that are compact, consisting of diverse housing types and mixed land uses, supporting pedestrianism and public transit, and limiting the consumptive land sprawl of conventional suburban development.”97 These aspirations parallel those of Jabareen’s aforementioned green design concepts. The envi-ronmental benefits of the various alternatives merit further attention, as they may provide opportunities for achieving the objectives of Alberta’s 2008 Climate Change Strategy.98

94 2008 Climate Change Strategy, supra note 6.95 Elliott, supra note 78.96 Nurit Alfasi & Juval Portugali, “Planning Rules for a Self-Planned City” (2007) 6:2 Planning Theory 164

at 168.97 Emily Talen & Gerrit Knaap, “Legalizing Smart Growth: An Empirical Study of Land Use Regulation in

Illinois” (2003) 22:4 Journal of Planning Education and Research 345 at 345.98 2008 Climate Change Strategy, supra note 6.


Two alternatives will be discussed: form-based code and performance-based zoning. It is important to note that these alternatives have significant drawbacks compared to Euclidean zoning, such as a higher regulatory burden – usually in the form of greater personnel demands. The ability of alternative zoning schemes to implement Jabareen’s seven green design concepts – compactness, sustainable transport, density, mixed land uses, diversity, passive solar design, and greening99 – far outweighs, however, their financial disadvantages, especially in these times of serious environmental concern. The alternatives promote the efficient use of residential and commercial land and infrastructure, minimize the loss and fragmentation of agricultural land, promote natural spaces, reduce fuel consumption, and encourage residents to become environ-mentally-minded through public participation: results that directly hearken back to the green design concepts.

4.1 Form-Based Code

Form-based code relies on intimate details, fleshed out by illustrations and diagrams that com-municate desired development goals in small areas. While this method directly contrasts with the large-scale zoning of regionally-defined maps found under Euclidean schemes, it can be incorporated into Euclidean zoning systems in particular districts. This technique often uses more refined categories of land use, such as “main street” rather than “commercial”, in order to provide clearer direction to parties involved in the planning process. Form-based code is also undergirded by new urbanist ideals: Andres Duany and Emily Talen, major proponents of new urbanism, argue that “conventional zoning breaks up rather than promotes the natural envi-ronment and that a new approach using codes is needed that considers the built and natural environment in tandem.”100 Rather than segregating land uses, form-based code focuses upon contextual development, relying on various community values and factors to mix land uses and intensify development in compact areas. The values of environmentalism in the Albertan context could thus be strengthened by using a form-based code.

Form-based code incorporates several smart growth principles, including “comprehensive growth planning, mixed land use zoning, design and planning for increased residential density, design for street connectivity, innovation in water infrastructure provision, and enhancement of public service facilities, including recreational areas.”101 Form-based code also uses several methods to achieve a more environmentally friendly urban environment through intensifica-tion, including “development of previously undeveloped urban land, redevelopment of exist-ing buildings or previously developed sites, subdivisions and conversions, and additions and extensions.”102 The use of existing infrastructure103 reduces the need to employ new materials and ensures a more compact built environment, leaving more space for agricultural or natural land uses and enabling economies of scale for service provision.104 It thereby concretizes several

99 Jabareen, supra note 22 at 38-43.100 Sarah Starkweather, Adrienne Low & Kenneth Pearlman, “Managing Growth: Recent Legal Literature”

(2004) 18:3 Journal of Planning Literature 267 at 270.101 Lin Ye, Sumedha Mandpe & Peter B. Meyer, “What Is ‘Smart Growth?’ – Really?” (2005) 19:3 Journal

of Planning Literature 301 at 307 [Ye et al]. 102 Jabareen, supra note 22 at 39-40.103 Ye et al., supra note 101 at 307.104 Ibid.


of Jabareen’s green design concepts. Fewer impervious surfaces are necessary as travel distances are shortened – mixed land use bringing amenities closer to home105 – and as a result, less energy is consumed, and less greenhouse gas is emitted. The mixing of land uses is another key feature of the new urbanist agenda. In spite of these positive aspects, one must remember that form-based code is extremely complex in its initial development stages and requires great efforts to coordinate.106

There have been very few developments in Canada embracing form-based code, but there are generally two methods of implementing this system: (1) using existing planning tools within the traditional planning framework; or (2) creating a new planning framework limited to the specific area. McKenzie Towne, in Calgary, Alberta, is an example of the first type of development. The City of Calgary Land Use Bylaw107 is respected, and the power of direct control designations108 was used to achieve several special features, such as reduced setbacks for front yards and studio suites.109 Plans are applied on a block basis rather than through the traditional method of designating large areas under particular land use categories. The main tools for this project are restrictive covenants instituted by the developer.110

Another example of the first type of form-based code is the recently approved Century Park in Edmonton, which is a direct control district involving intimately guided development, similar to that in McKenzie Towne, Calgary. Century Park features infill development that will maximize mixed use potentials and density,111 and will be accessible via Edmonton’s light rail transit network, promoting sustainable transport.

A further example of the first type of form-based code is the development plan for the King-Spadina and King-Parliament neighbourhoods in Toronto. These former industrial dis-tricts are in disrepair, but anticipated zoning will focus on “objectives for quality of built form, protection of public spaces, [and] retention of existing buildings,”112 thereby pushing the use restrictions to their widest ambit, promoting infill development and the reuse of materials through restoration, and providing for compactness and reduced transportation needs.

The community of Cornell, in Markham, Ontario, is an example of the second type of form-based code development. Markham created an Urban Expansion Bylaw,113 where zoning is applied by block. There are several mixed zones of commercial, residential, and institu-tional uses, and permissive zones with dwelling types left unspecified.114 Density restrictions

105 Marwedel, supra note 79 at 222.106 Cf. Michael Neuman, “The Compact City Fallacy” 25 Journal of Planning Education and Research 11.107 City of Calgary, By-law No. 1P2007, Land Use Bylaw (23 July 2007).108 Supra note 17, s. 641.109 Moyes, supra note 82 at 5.110 Ibid. 111 Century Park Club & Residences, online: Central at Century Park | Condos | Edmonton <http://www.

centurypark.ca/>.112 Moyes, supra note 82 at 6.113 Town of Markham, By-law No. 2004-232, Area Specific Development Charges By-law for the Cornell Area

41 Development Area of the Town of Markham (31 August 2004).114 Moyes, supra note 82 at 5-6.


are zoned on development maps.115 The developer had significant power over the process of zoning within the development.116 This finely-tuned bylaw encourages mixed-use zoning that will reduce transportation requirements.

Unfortunately, these are but isolated examples: form-based code zoning schemes remain little-used throughout Canada. Nevertheless, these cases serve to illustrate how the planning process can integrate qualitative objectives into effective planning in Canada. Either through the existing planning framework in Edmonton, or through a new bylaw, environmental objec-tives can be achieved through form-based code focusing on infill development, revitalization, protection of natural lands, and minimization of land surface use to bring amenities closer and reduce transportation needs. This, in turn, will reduce energy use and greenhouse gas emis-sions. This planning method has many positive environmental attributes which could contrib-ute to a greener development strategy in Alberta.

4.2 Performance-Based Zoning

Performance zoning focuses upon the intensity of use, rather than the type of use, to procure a more accurate understanding of how the land will actually be used and affected by develop-ment – a process known as qualitative planning.117 As early as 1951, Dennis O’Harrow, execu-tive director of the American Society of Planning Officials, argued that “traditional prescriptive zoning had not kept up with advances in factory design and technology and did not provide an adequate basis for mitigation impacts.”118 While Euclidean zoning is instrumental in achiev-ing planning goals, performance zoning is directed toward the actual results of the planning process.119 Thus, together they can achieve a more thorough and fuller account of land use planning. Performance-based planning can achieve several of Jabareen’s green design concepts, including, but not limited to, implementing density standards, mixed land use, passive solar design and greening.

Performance zoning works by establishing “particular standards and other criteria for determining appropriate uses and site design requirements rather than prescribing specific uses and building functions. Performance zoning establishes criteria which ensure that each land use is compatible with adjacent land uses, and more specifically that one land use will not adversely affect others. 120 Two approaches to performance zoning have been undertaken: regulation of the site and regulation of activities or outputs. Site regulatory standards result in appealing developments that adhere to the character of the local community, while activity regulatory standards create good neighbours by limiting the effect of industries on the commu-nity. 121 Site and activity regulatory standards need not be mutually exclusive. The combination

115 Ibid.116 Ibid.117 Richmond, Virginia, United States, Richmond Regional Planning District Commission, Applications

of Performance Zoning for Industrial Uses in Hanover County: A Technical Assistance Project (Richmond: 2001) at 18.

118 Baker et al., supra note 91 at 397.119 Moyes, supra note 82 at 5.120 Supra note 117 at 4.121 Ibid. at 16.


of both site and activity standards can help achieve desired community character, while reduc-ing the environmental impacts that industries have on adjacent landowners.122

Relying on the Canadian Environmental Assessment Act,123 and Part 2 of the Environmental Protection and Enhancement Act,124 in conjunction with its supporting regulations,125 environ-mental performance standards can be mandated as a prerequisite for project approvals. These standards are very similar to those which may occur in the planning context. Performance-based standards are common for industrial development, as environmental regulations usually necessitate them. They are uncommon, however, in residential and smaller-scale commercial uses, and could be implemented in those areas by applying standards such as carrying capacity and environmental quality requirements.

Performance standards can be established through stakeholder meetings, which allow community participants to debate the level of environmental standards that should be estab-lished in order to achieve a desired level of sustainability.126 Stakeholder meetings also educate community residents about environmental concerns in their area and make them more fully aware of how planning and their daily routines impact the natural surroundings. By using combinations of standards, such as open space ratio127 and impervious surface ratios,128 the natural environment can be integrated into development projects. Standards often include environmental controls on air pollution, radioactive radiation, glare, humidity, fire, and explo-sive hazards.129 Other conventional standards such as setbacks and lot size can be described in units per area for density, and open space ratios.130

Despite all the benefits of performance-based regulation, it has yet to be implemented in any pure form and thus remains largely untested.131 Yet land use zones with specific attached performance standards have been implemented, hence the term performance-based “zoning.”132 Nevertheless, vague standards have plagued performance zoning,133 as it is difficult to articulate specific metrics.134 A further problem is that enforcement of performance zoning requires an

122 Ibid. at 16.123 Supra note 37.124 Supra note 45.125 Environmental Assessment (Mandatory and Exempted Activities) Regulation, Alta. Reg. 111/93, as am;

Environmental Assessment (Mandatory and Exempted Activities) Regulation, Alta. Reg. 110/93, as am; Activities Designation Regulation, Alta. Reg. 110/93, as am.; Approvals and Registration Procedure Regulation, Alta. Reg. 113/93, as am.

126 Supra note 117 at 18.127 Baker et al., supra note 91 at 398.128 According to Marwedel, “ISR is the proportion of a site covered by impervious surfaces.” Supra note 79

at 222 (ISR can be used to standardize natural features for particular developments).129 Understanding Land Use in Alberta, supra note 68 at 397.130 Douglas Porter, Patrick Phillips & Terry Lassar, Flexible Zoning: How it Works (Washington: Urban Land

Institute, 1991) at 97 [Porter et al.]. 131 Marwedel, supra note 79 at 220.132 Ibid.133 Ibid. at 226.134 Baker et al., supra note 91 at 398.


effective administrative authority, and can be difficult to achieve if imprecise standards are employed. Moreover, the greater the number of standards created and applied, the longer the site plan review process will take.135 Designing clear standards will require attention to detail in all areas in which they are implemented, as different environmental idiosyncrasies must be taken into account.

Performance zoning has also been critiqued as disorderly; however, mixed land uses can be guided by development standards, and when performance standards are combined with less stringent forms of conventional land use zoning, there is little disorder. Thus, Euclidean zoning can be infused with flexibility by way of performance standards.136

As previously noted, no pure examples of performance-based zoning exist. Additionally, case law on the subject is sparse, if existent. This is not an indication that there are no issues with this type of planning; rather, this silence likely reflects the fact that it is not a widespread practice. Christopher Duerksen hypothesizes that there are four areas where case law regarding performance zoning could arise:

1) Setting performance standards: ensuring that they are clear and precise;

2) Economic impacts on landowners: whether regulations deprive a landowner of his or her economic use through cumulative impacts of performance standards;

3) Margin of error and nonconforming uses: defining a cushion of error within the standards to build some toleration for changes of use and amending regula-tions; and

4) Implementation: ensuring that there are adequate resources for administration and enforcement.137

As for whether performance zoning requires more or less regulatory supervision than Euclidean zoning, the literature is undecided.138 This will remain unsettled so long as per-formance-based zoning is relatively unpractised. Although Euclidean zoning requires zoning changes on a consistent basis, it is still unknown whether performance zoning streamlines the regulatory process, in line with the claims of its proponents advocating performance zoning’s “better design control and flexible response to special demands of the site.”139

The Canadian Mortgage Housing Corporation has commissioned two reports on per-formance-based planning. One study focused upon its potential application in Morinville, Alberta (within the Capital Region), recommending that the regulatory tool not be instituted because “(1) there were no examples of where performance-based planning was working well; (2) it can only be applied to new developments; and (3) the model is too unpredictable.”140 The second report advised that performance-based zoning should operate in congruence with

135 Supra note 117 at 18.136 Marwedel, supra note 79 at 227.137 Baker et al., supra note 91 at 399.138 Ibid. at 407-408.139 Ibid.140 Ibid. at 399.

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•

•

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Euclidean zoning,141 thereby dispelling much of the concern raised in the first report, and leaving no impediment to its implementation in the Capital Region.

Incentive zoning is a sub-practice of performance-based zoning that not only requires development projects to meet prescribed standards, but also provides subsidies for desired development projects, either through tax reductions or direct funding. This technique acts to encourage rather than simply prescribe the direction of development. It could be extremely valuable in endorsing appropriate development in the natural resource-based economy of Alberta, with large industrial developers hoping to reduce capital costs on a large scale.

In sum, performance-based planning is an environmentally qualitative alternative to pure Euclidean zoning; it demonstrates an attention to detail that will lend more consideration to environmental impacts of development, and there are currently no compelling reasons for refusing to implement it within the Capital Region.

5. HYBRID ECO-PLANNING IN ALBERTA

Due to the relative complexity of the alternative approaches to land planning, there is little motivation on the part of the Alberta government to change from traditional Euclidean zoning. However, as Alberta embarks on its 2008 Climate Change Strategy,142 the goal of envi-ronmental protection provides a significant impetus to amalgamate the positive aspects of these approaches. For instance, form-based code makes frequent use of subdivision planning to conserve environmental resources where they exist in areas slated for development.143 By sub-dividing a designated lot containing an environmental resource, this resource can be protected from development by designating the lot as a natural area to be left untouched.

A hybridization of planning schemes may thus be the best solution. Form-based code and performance standards can be integrated with one another144 within a Euclidean framework, as many of the concepts of both alternative techniques overlap when directed toward green design concepts, as evidenced by the foregoing analysis. It is unlikely that a complete overhaul of the Euclidean system will happen in the near future. Nonetheless, the foregoing analysis has shown that the alternative zoning approaches may work in coordination with the traditional Euclidean scheme through the use of direct control planning for form-based codes, and the use of more selective zoning designations for performance-based zoning areas.

The Municipal Government Act145 is conducive to permitting alternative zoning strategies. Pursuant to Section 641 of the Act, a municipality may designate an area within its authority as a “direct control district”, for which it may directly control the development process as it

141 Ibid. “The second CMHC report, based on twenty-six informant interviews across three countries [United States, New Zealand, and Australia] concluded with a number of key lessons for Canadian com-munities. These include (1) the process should be a top-down voluntary approach – driven at the state or provincial level; (2) do not replace traditional zoning systems, but rather use performance-based regula-tions in parallel with Euclidean zoning; (3) avoid complexity at all costs; and (4) accept the incremental nature of innovation.”

142 2008 Climate Change Strategy, supra note 6.143 Porter et al., supra note 130 at 81.144 Ibid. at 399 and 401.145 Supra note 17.


sees fit, subject to override by the designated authority under Section 619 of the Act. Planned Unit Developments (“PUDs”) employing a form-based code technique to achieve environ-mental objectives could be instituted in these districts. A land use bylaw is still required by each municipality, pursuant to Section 639 of the Act, and must comply with Section 640 per-missions. This bylaw could be created with more refined detail, to ensure mixed land uses and apply form-based code and performance-based standards for particular development areas.

Although the Capital Region Integrated Growth Development Plan146 is a step toward regional planning in Alberta, and is a welcome move toward efficient coordination of infrastructure, its focus is not just on maximizing efficiency but also on ensuring that a regional governance board is able to coordinate development as sprawl in the region continues. This plan needs to zero in upon reducing urban expansion in the region, rather than encourage its advent or accept it as an eventual reality. Less attention should be paid to coordinating inter-municipal development in fringe areas and more to infill development and to maximizing density and compactness appropriately.

There is some potential, however, for slight but effective revision within the provincial legislation: the Municipal Government Act147 should include environmental protection as an objective within its Part 17 “purpose” section. With the inclusion of the environment, it would not be subject to override for economic reasons, as is currently the case.148 Performance stan-dards and form-based code could provide a direct link between the purpose provision of the legislation and eventual environmental results, 149 thus facilitating the objectives of planning.

Form-based code and performance-based planning can therefore be integrated within Euclidean zoning and with one another under the Municipal Government Act.150 Municipal development plans need to take notice, however, of options available under the Act that would enable them to implement greener alternative zoning practices. The Canadian Mortgage and Housing Corporation is currently promoting a fused-grid approach that focuses upon more environmentally-friendly transportation networks within cities to improve the quality of life of residents; however, this method has not been widely implemented.151 Thus far, alternative planning instruments have undeniably been neglected, and too many Canadian municipali-ties appear unable or unwilling to make greener decisions in municipal planning bylaws and development plans.

6. CONCLUSION

Due to longstanding restrictive zoning traditions and strong opposition from politically powerful building and development and natural resource industries, alternative forms of zoning have, in general, yet to be implemented in Canada. Apart from the sparse examples of

146 Capital Region Integrated Growth Management Plan, supra note 2.147 Supra note 17.148 Supra note 17, s. 617.149 Porter et al., supra note 130.150 Supra note 17.151 Canadian Mortgage and Housing Corporation, “Breaking Ground: A Fused Grid Neighbourhood in

Calgary,” Socio-economic Series 08-020, December 2008.


McKenzie Towne152 (Calgary, Alberta), Cornell153 (Markham, Ontario), and the anticipated Century Park (Edmonton, Alberta) and East Fraserlands154 (Vancouver, British Columbia), Canada has been slow to adopt innovative solutions in its zoning ordinances. Complementary alternatives to the traditional pure Euclidean zoning exhibit, however, the potential to help Canada meet international environmental standards, such as greenhouse gas emissions reduc-tions under the now-abandoned Kyoto Protocol.155 Caution should nonetheless be taken when implementing alternative regulatory measures in planning: zoning ordinances are only as good as the standards they enact. As previously noted, “the success of implementing codes is dependent on being comprehensive (for example, embracing all the development standards), simple (not too difficult to administer), and technically worded (use legally defensible techni-cal measurement).”156

A complete legislative overhaul of Euclidean zoning law is unnecessary in Alberta. The key environmental aspects of alternative zoning schemes, such as form-based code and per-formance planning, can still be implemented with the tools available under the planning pro-visions of the Municipal Government Act.157 Minor legislative revisions can aid in directing the planning process toward achieving the environmental objectives under the 2008 Climate Change Strategy.158 The main action would, however, need to be undertaken by the municipali-ties, taking notice of their environmentally-friendly options under the Municipal Government Act159 and infusing them into their planning bylaws and municipal development plans for greener growth.

With the current undertakings of the Capital Region Integrated Growth Management Plan160 and The Way We Grow: Municipal Development Plan,161 the time is ripe to apply these environmental planning strategies to help orchestrate the future municipal planning regime in Edmonton. The city can revolutionize its land use planning by adopting key components of form-based code and performance planning. Should it do so successfully, other cities – both in Canada and throughout the globe – can learn from its example. Canadian municipalities should endeavour to rejuvenate their Euclidean frameworks with alternative planning strategies to achieve environmental objectives. It is time to plan for the environment and the economy: it is time for smart growth.

152 Carma Developers LP, “McKenzie Towne – A Small Towne in the City” (2007), online: McKenzie Towne by Carma – Calgary, Alberta < http://www.mckenzietowne.ca/>.

153 Andrejs Skaburskis, “New Urbanism and Sprawl: A Toronto Case Study” (2006) 25 Journal of Planning Education and Research 233 at 233.

154 City of Vancouver, “Community Services, Planning: Current Planning” (2003) online: East Fraserlands <http://www.city.vancouver.bc.ca/commsvcs/currentplanning/current_projects/east_fraserlands/>.

155 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, UN Doc. FCCC/CP/1997/L.7/Add.1, 37 I.L.M. 22 at art. 2.2 [Kyoto Protocol].

156 Baker et al., supra note 91 at 399.157 Supra note 17.158 2008 Climate Change Strategy, supra note 6.159 Supra note 17.160 Capital Region Integrated Growth Management Plan, supra note 2.161 Edmonton MDP, supra note 10.

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