Appeal

Notice of Appeal Decision

Posted on Friday December 14, 2018 at 10:18AM

This is to notify you that an appeal against Development Permit No. 049-18 with regards to the following:

Development Permit No: 049-18

Land Description: NW 34-53-18 W4

Proposal: Licensed Medical Cannabis Facility

Applicant: Gaia Bio-Pharmaecuticals Incorporated

was considered by the SUBDIVISION & DEVELOPMENT APPEAL BOARD on
December 3, 2018, and the decision of the SUBDIVISION & DEVELOPMENT APPEAL BOARD with regard to the appeal is as follows:

Background Facts
The appeal to the SDAB occurred as a result of a deemed refusal by the Development Authority and was properly before the SDAB for consideration under the provisions of s. 686(1) (a) (I) (B) of the Municipal Government Act

The purpose of the hearing was to gather evidence and information from involved and concerned parties in order to give the Board Members sufficient information to make an informed decision on the appeal of this development.

Staff Report

The Director, Planning and Community Services presented the staff report that stated that Lamont County has followed the proper protocols to receive this development per-mit for a facility to grow medical marijuana. Further, the Director, Planning and Com-munity Services submitted to the Board the proposed use qualified as Intensive Agricul-ture, a discretionary use in the Agricultural (A) District under the Land Use Bylaw.

Applicant’s Submissions
The Applicant advised they had selected these lands as the most economic lands availa-ble. They hold an option to buy and they have the consent of the owner for their pro-posal. Further, their operation will employ Sea Cans for the grow operations which will be contained within a 10,000 sq. ft., 34 ft. high Sprung structure. Thus, being entirely self-contained, they believe the proposed use will have minimal impact on their neigh-bors. Their plans is to initially employ 5 persons, which could grow to 50 employment opportunities when they reach their eventual objective of over 100,000 sq. ft. of opera-tions. They recognize this would require additional development permit applications being made.

The Applicant has attempted to seek local support, holding an initial meeting in a neighbouring farmhouse of an affected party with a number of the affected neighbour-ing landowners. Further, they advertised and held a public meeting to explain their pro-posal and seek local support.

Recognizing the opposition from affected parties, the Applicant advised that, if ap-proved, they would accept a condition barring expansion beyond the initial proposal for a 10,000 sq. ft. structure on these lands.

Affected Parties’ Submissions
A large number of affected parties, including neighbouring landowners within an ap-proximately 4 mile area, attended the hearing and 12 of these parties spoke on behalf of all. Additionally, petitions were presented signed by what was demonstrated to be the great majority of landowners within the area around the proposed development. Their objections were not specific to the product of the operation, but to its location in their farming neighbourhood. They argued that these lands are rated as 80% class 2 soils, which Alberta Agriculture rates as some of the best soil in the province. The proposed operation doesn’t use the soils as it is entirely self-contained. There are wetlands locat-ed on these lands and no study has been done as to the impact on them. As such, they believe the proposed use to be properly characterized as a commercial or industrial use that does not belong in their farming area.

These parties also objected to the height of the structure being an eyesore and nuisance to the immediate neighbours. They expressed concerns over the proposed lighting, a possible increase in crime with slow response times from the RCMP, water use and smell from the operations.

They also objected to the proposed development on the ground the commencement of an operation employing potentially 50 people has done no survey of the wetlands located upon the subject land nor a geotechnical study as to these lands, the effect of runoff from such large structures, nor any traffic impact analysis of the addition of 200 or more vehicles that will run over these gravel roads that are noticeably soft, even im-passible at times, in the spring.

As well, the affected parties objected to this type of operation being included as a dis-cretionary use in an agricultural area without it being subject to a public process first to consider if specific regulation was more appropriate.

Decision
Upon hearing the evidence and argument presented at the hearing, and considering the written submissions received during and in advance of the hearing, the Board denies the application and refuses the appeal for the following reasons

Reasons
While the County believes the proposed use qualifies as a discretionary use in an Agri-cultural (A) District, the Applicant’s proposed development appears to have no neces-sary connection to the quality agricultural land that it would occupy. The proposed de-velopment requires only a serviceable site sufficient to contain a 10,000 sq. ft. Sprung structure. Such an operation would be compatible with a Commercial or Industrial Dis-trict.

The Board accepts the County’s submission the proposed development fits within the definition of Intensive Agriculture, which is a discretionary use in the Agricultural (A) District. "Intensive Agriculture" means an agricultural operation raises crops on a land intensive basis. Intensive agriculture includes, greenhouses, silviculture and sod farms, but does not include confined feeding operations.

Alternatively the proposed use may have fit within the definition of Light Industrial Us-es, also a discretionary use in the Agricultural (A) District. "Light industrial uses" means activities involved in the processing, fabrication, storage, transportation, distri-bution or wholesaling of goods which do not, in the sole opinion of the Development Authority, emit a significant level of noise, smoke, dust, odour, vibration, etc., and which are compatible with the surrounding land use.

For the reasons set out below, the Board’s conclusion is the same regardless of which discretionary use class the proposed development best fits within.

The nature and size of the plans advanced by the Applicant in the absence of any studies (land, geotechnical, wetland/environmental, safety or traffic impact) has led to the cur-rent impasse with the affected parties. As well, if this was to continue as Phase 1 of a greater operation, the Board would require this type of analysis to determine if this was an appropriate development for this site. The recent apparent abandonment of their larger ambitions adds only greater uncertainty as to the Applicant’s intentions and in-sufficient to address these concerns and makes it even more problematic that this devel-opment should tie up good agricultural land.

In exercising its discretion, the Board must consider the purposes of the Municipal De-velopment Plan (MDP) and the Land Use Bylaw (LUB) and how the proposed develop-ment relates to them. On a development appeal, the SDAB is required to comply with the Land Use Bylaw (subject to its variance power) and any applicable statutory plans.

One of the three fundamental principles of the MDP is that municipalities are expected to respect the rights of individual citizens and landowners and to consider the impact of any policy or decision within their overall public interest.

Further, the MDP provides that in agricultural areas, the goal is to attempt to protect farming by discouraging the use of agricultural land for non-farm land uses or the frag-mentation of farm land, and by minimizing the disruption of farm operations by nearby incompatible land. Non-farm uses that may conflict with agricultural uses should not generally be allowed except in unique or special circumstances.

In the LUB, the purpose of the Agricultural (A) District includes protecting and promot-ing activities associated with agricultural production as well as the extraction and pro-duction of natural resources; and to conserve, where practical, large tracts of higher ca-pability agricultural lands.

As such, it is the Board’s determination that this development does not meet the re-quirements of preserving prime agricultural land and is not an appropriate use for the lands. As well, there are apparent unresolved conflicts with neighbouring affected par-ties with respect to the compatibility of the proposed use with neighbouring parcels of land for the reasons submitted by the affected parites. There is nothing unique or spe-cial about this development that would justify its intrusion in this Agricultural (A) Dis-trict.

The Board is not persuaded the proposed development is consistent with the MDP and the LUB or is reasonably compatible with neighbouring uses, even if conditions were to be added to address concerns raised by the affected parties.


SDAB

ADVISORY:

The applicant has the ability to make new application in six months from the decision date. The Board recommends that if a new application is to be pursued that the applicant has prepared an Engineering Design Brief that will include; a Transportation Impact As-sessment, water and wastewater analysis to support water consumption needs, a site grading plan and stormwater modelling to illustrate no impact to surrounding develop-ments in support of the proposed project.

NOTE:

A decision of the Subdivision & Development Appeal Board is final and binding on all parties and persons, subject only to an appeal upon question of jurisdiction or law pur-suant to the Municipal Government Act. An application for leave to appeal to the Court of Appeal shall be made:

a) to a judge of the Court of Appeal;
b) within 30 days after the issue of the order, decision, permit or approval sought
to be appealed.

Author: Lamont County

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