January 16, 2013
Alberta

MD ratepayers challenge land use by-law changes

Rob Vogt, GAZETTE CONTRIBUTOR | Posted on January 16 2013 | Macleod Gazette | www.fortmacleodgazette.com

MD of Willow Creek council delayed a decision on proposed amendments to the land use by-law until it reviews input from Wednesday’s public hearing.
About 70 people packed into council chambers for a 4.5-hour public hearing during which ratepayers expressed concerns on everything from the desire for tighter guidelines on windmill development to fewer restrictions on resource extraction, namely gravel pit development.
The MD of Willow Creek has proposed amendments including removing several non-agricultural land uses from the “Rural General” designation requiring certain recreational or industrial proposals to be re-zoned before a development permit can be filed.
Before the public hearing opened, Reeve Henry Van Hierden declared a possible conflict of interest, because he owns a gravel pit, passed the chair to Deputy Reeve Neil Wilson and left the room.
Coun. Ian Sundquist also declared a possible conflict of interest, because he too owns a gravel pit, and left the room before the hearing began.
As soon as Sundquist left, there were three comments from the crowd.
In response, MD of Willow Creek planner Mike Burla stood up and addressed the crowd.
“As long as I’m in this room it’s the way the chair will run this meeting,” Burla said, raising his voice.
A member of the gallery asked who he was. Burla replied he is the municipality’s planner, he wrote the by-law and would answer the questions on it. Burla also invited that person to leave.
After being told to calm down by members of the crowd, Burla sat down.
“We will do our best to satisfy your concerns,” Wilson said.
Ratepayer Maryanne Sandberg stood on a point of order, asking if the two councillors who had excused themselves participated in the writing of the draft by-law.
Burla replied council discussed the by-law, but those two councillors excused themselves from discussion on natural resource extraction.
Sandberg said those two councillors represent the ratepayers, and the ratepayers would like those councillors present representing them to answer questions.
Wilson replied they could have been present but would have had to step out every time the subject of resource extraction came up, so instead of going in and out of the meeting, they chose to excuse themselves.
“I guess that partially answers the question,” Sandberg said.
Burla then explained the background to the by-law.
“I apologize for my brief comments earlier,” Burla said, adding he should have conducted himself in a more civil manner.
Burla went on to say he has been the MD of Willow Creek’s planner since 1982 and has never seen the municipality go through such lengths to invite public participation.
“I think your input today is extremely important,” Burla said.
Burla explained these amendments were nine to 10 months in the works and one phase in a series of amendments.
The rationale for them came out of an incident in the MD of Foothills where a proposed landfill was debated. It was done at the re-zoning stage where a public hearing was required and more than 300 people attended, including the MD of Willow Creek and Vulcan County.
The proposed by-law deals with several uses such as gun ranges, golf courses, resort accommodations, noxious industries, abattoirs, resource extraction, and much more.
“Again, I apologize for my earlier remarks,” Burla concluded.
Wilson added the MD of Willow Creek is also working with its neighbouring municipalities on creating intermunicipal development plans.
The next step in the hearing was written submissions which MD of Willow Creek manager of planning and development Gail Gibeau read into the record.
There were four letters. One expressed concerns there was no prior discussion with ratepayers and the fact notification was done over Christmas.
A second letter disagreed with the changes, accusing council of wanting easy passage by using Christmas notification, and condemning two councillors for getting gravel pits.
A third supported the changes, especially removal of noxious industries from Rural General.
A fourth letter was generally positive to the changes but noted river valley and shoreline criteria was not included in the country residential or reservoir vicinity districts.
The first speaker was Griff Thomas who had concerns about wind farms, admitting the proposed by-law did not address wind farms. His concerns were there are inadequate setbacks from turbines; visual impact on the municipality; no density restrictions of windmills; taxes and the fact if a wind-energy company walks away from a windmill, the land owner starts paying the tax; no decommissioning or reclamation plans; the potential property damage if a tower collapses or burns; and a decline in property values.
Burla said the comments were relevant and pertinent and may be dealt with in a future phase.
Bernadette McNab and her husband Dave have been realtors in Fort Macleod and the municipality for 40 years. She said buyers prefer land with few restrictions. Restrictions reduce the sale price, and when land values decline, property can fall into disrepair.
“We need by-laws for orderly development,” she said, but not excessive ones.
McNab has spoken with experts and none have said these measures are warranted. In fact, they said ratepayers should be outraged. She also heard people ask if the changes are an attempt to shut down business.
Speaking specifically of gravel pits, Bernadette McNab said in Calgary mining occurs right out of the river. In her case, they have been working with environmental agencies since 1962.
“The safeguards are in place,” McNab said.
“The environment can simply not be used as an excuse.”
She later added these by-law amendments are not voluntary and the land owners are paying the price. She is concerned about the local economy and the amendments will stifle innovation and growth.
“This demands further study,” she said.
Sandberg had several questions to pose.
She noted there was no public consultation or minutes posted before first reading of the by-law and wanted to know why council discussed the by-law behind closed doors, before passing first reading.
Wilson replied the closed session was used so council could hash it out. They could have had a discussion then given first reading. Instead they passed first reading which automatically triggers a public hearing.
Sandberg asked exactly what is in-camera for?
MD of Willow Creek chief administrative officer Cynthia Vizzutti explained in-camera is so councillors can have a blunt conversation, but all decisions must be made in public.
“The public process in this case has been followed to the nth degree,” Vizzutti said.
“Why the secrecy?” Sandberg asked, and why over Christmas?
Coun. Earl Hemmaway responded the idea was to inform the public through a Christmas card which went to everyone in the municipality.
“It sparked a lot of interest as far as I can see,” Hemmaway said.
Sandberg then wanted clarification on what businesses are and are not allowed in Rural General, because most farmers and acreage owners have some sort of side business, yet commercial uses are now prohibited in Rural General. Further, how will that affect taxes?
Wilson replied zoning is to accommodate not prevent business.
Wayne Lamb, the municipality’s assessor, explained that assessment, which is what taxes are based on, is based on use not zoning. A gravel pit would be assessed on market value. He does not look at zoning at all.
Sandberg asked why then are gravel pits going to be zoned Rural Industrial?
Coun. Glen Alm said re-zoning makes the process more public because each application requires a public hearing of the entire municipality. Conversely, if it were strictly a development application, then only the adjacent landowners would be notified.
“We’ve gone this way so everyone in the municipality can be notified,” Alm said.
Dale Sandberg asked if this is the first phase, will there be changes every year? At present the land use by-law is 300 pages, where neighbouring municipalities’ by-laws are 200 pages.
“It just seems to get more and more confusing,” Sandberg said. “The average land owner can’t understand it.”
Sandberg also wanted to know what are prohibited commercial uses under Rural General and how they are chosen.
Burla said the by-law is written to give council discretion.
“We’re not here to hide anything,” Burla said. “We’re here to get information.”
“I’d rather enable than govern,” Wilson said. “We need wiggle room.”
Sandberg said he is not against small business, but if the MD of Willow Creek allows one it should allow them all.
Sandberg went on to ask what is the difference between permitted and discretionary windmills. Burla responded that permitted uses are for smaller, domestic windmills, and discretionary uses are for larger ones.
Sandberg also asked who determines what environmentally-sensitive areas are.
Vizzutti replied all applications are referred to a number of agencies including departments of government.
Sandberg said that did not answer the question.
Vizzutti said the federal government in Sandberg’s area.
Sandberg asked if the requirements come from higher up, why is the MD of Willow Creek enforcing them?
Burla said flood mapping was done years ago, and forms the basis for the definition in the by-law.
Sandberg said it is bothersome to own land 75 years and be told it is environmentally sensitive when no one has ever set boots on the ground and had a look. Beyond that, who gives someone a say on what can be done on private land?
Gibeau said the provincial government has done archaeological maps covering the whole province, and with Global Information Systems it can be referred properly, so everyone knows if there are sensitive areas.
Eric Sandberg said there is a lot of information and more needed. He suggested bringing a draft by-law out before the fall municipal election for ratepayers to decide.
Fran Van Driesten asked why wind farms are under Rural General not Rural Industrial, and she would like to see a vote of ratepayers before any windmills are located.
“It’s going to affect our property values by 40 per cent,” Van Driesten said.
Burla said that requiring an industrial use can be discussed in the future.
Gerald Lyon presented several suggestions to protect the wildlife and shorelands in the country residential and reservoir vicinity districts.
Burla said many of these issues will be considered during the re-zoning stage of an application.
Ron Fournier expressed concerns all windmills have permanent roads, and the windmill operators should be taxed. There are rules the MD of Willow Creek can use to put on windmills. Further, he suggested moving windmills from Rural General to Rural Industrial where the municipality can put in a new set of rules.
Annet Ribling added she could have a windmill 400 metres in front of her house, affecting her health and property values.
Vizzutti replied that three municipal lawyers have told her provincial legislation prevails, but will take his suggestion to legal counsel.
Arnie Berger said council does a pretty good job for the most part. He asked if Class I and II gravel pits will be lumped together. If so, it will mean paying $30,000 to an engineer for reclamation work operators have been doing 36 years.
Burla said Class I and II will be distinguished.
“We’re not going to put any more red tape,” Burla said.
Alex Van Herk suggested the MD of Willow Creek look at effect windmills have on wildlife, who looks after the roads, and what about decommissioning?
Jim Tollestrup is a gravel pit operator and owns land in the MD of Willow Creek. He said they are currently in their 75th year of mining gravel, with 14 pits and nine on the river valley. They are governed by Alberta Environment for reclamation and the Department of Fisheries and Oceans to regulate fish and wildlife.
Tollestrup stressed he is not there to dig up the land then run away.
“We’re there to make it better,” Tollestrup said, noting 99 per cent of the resource is on the river.
Moreover, gravel mining does not de-value the land, but can make an aquifer better because they mine out the silt that can plug an aquifer.
“We’re not the bad guys,” Tollestrup said, adding he has 30 employees who live in the MD of Willow Creek.
Vizzutti asked Tollestrup if the process of re-zoning will be onerous.
Tollestrup replied he was not sure but land owners are looking for a way to make approval easier.
Claudia Steinke said there was no evidence to support these by-law changes, and wondered if they were driven by someone’s agenda. She said there are already restrictions, and development can be done by working together and not with more restrictions. Plus, the MD of Willow Creek should ensure development is safe and protected, not have no development.
Steinke said gravel pits are a good thing if done right, and there is no compelling reason for the changes.
Alm said the difficulty comes in some people wanting more restrictions, while other people want less. These changes open up the process.
Doug Ashley said he is for business and development, but it has to be on the same playing field, so how is the tax changed from Rural General to Commercial to Industrial?
Alm replied it is based on use not zoning, while Wilson said the triggers for changing taxes based on use will be discussed further.
Colleen De Kok asked how the land use by-law will work together with the South Saskatchewan Regional Plan. Should the MD of Willow Creek have waited until this plan is complete?
Wilson replied the terms of reference for the regional plan have been known for awhile, and they were kept in mind as the MD of Willow Creek amended its land use by-law. This way the municipality gives the directive rather than have someone from Edmonton tell them what to do.
“From a municipal perspective, we want to drive the ship,” Wilson said. “Not the province.”
“The key issue is respecting property rights,” De Kok replied. “I hope property rights are respected in your by-laws too.”
Dave McNab said a lot of people opposed his gravel pit without even wanting to look at science, such as hydrological reports prepared by the best consultants in the industry.
McNab also wanted to see acreage owners, who move into areas where development such as gravel pits and feedlots already exist, sign off that they are aware of these developments and it be on the land title.
McNab concluded by saying Alberta Environment has checked out his development for 34 years.
If people have concerns they should talk to him.
Norm Ward was concerned the Alberta Land Stewardship Act, under which the MD of Willow Creek is supposed to work, will govern how he can use his private land.
“I would urge council to step back and re-evaluate,” Ward said.
Bill Newton said there was too much detail in the by-law and questioned the definitions used, especially for environmentally-sensitive areas, and suggested it be all taken out.
Linda Smiley asked what the next step is, and Bryce Veenland urged council to use common sense in their decision making.
Dale Sandberg urged councillors to go back to their wards and talk to ratepayers before voting on these amendments.
“I hope we can come out of this better for the future without handcuffing everybody in the meantime,” Sandberg said.
Burla noted that once a public hearing is closed, the law states no more information can be taken in before a decision is made.
“I don’t think you need to apologize Mike,” Arnie Berger said. “It looked like you were going to get lynched.”
Berger urged everyone to keep one thing in mind.
“We all live in a pretty good place.”
At the end of its meeting council went in-camera to discuss what its next step will be.
When council reverted to open session, they agreed to re-convene on Jan. 14 and again on Jan. 15 if necessary to discuss the matter.
No results of those deliberations were available at press time.