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HomeMy WebLinkAbout2003-09-05 Council Minutes0 0 • E, Council Agenda Item # 6(e) To Gene Kiviaho (CAO) Reeve and Members of Council From Deanna Keiver Date 9/5/03 Issue Hog Operations Owned by Stephen and Gideon Berniko Located on NW 26 30-25 W4 and SW 35 30 25 W4 Respectively Background A hog operation exists on both of the above noted 20 acre parcels Both operations utilize one lagoon located on the south parcel (NW 26 30 25 W4) Both operations have their own wells, however they are tied together This matter was first brought to the attention of the Municipal Planning Commission (MPC) in February 2001 Stephen Berniko was permitted for an 80 sow farrow to finish operation on the NW 26 30 25 W4 however, upon purchasing the SW 35 30 25 W4, he wished to expand to 160 sows farrow to finish utilizing both parcels The Commission on February 6, 2001, approved the development with the condition (# 12) that it was to be considered one operation consisting of two 20 acre parcels and if either parcel was sold, the operation was to become a non conforming use Therefore a new application must be made at that time It should be noted that, at that time, MPC wanted the applicant to consolidate both parcels, however, the applicant did not wish to, as he wanted to sell one of the parcels to his brother Timeline of Events Subsequent to the Original Permit February 6, 2001 — Stephen Berniko's expansion approved by Kneehill County January 1, 2002 NRCB deemed the approving authority over Confined Feeding Operations (CFO) and Manure Storage Facilities rather than the local municipalities February 5 2002 — NRCB requested clarification of the February 6, 2001 decision, as Stephen Berniko had sold the SW 35 30 25 W4 to his brother, Gideon The current Commission upheld the decision of the prior Commission May 15, 2002 Letter received from NRCB indicating that Stephen Bermko (NW 26 30 25 W4) was applying for a 165 sow farrow to finish operation April 8, 2002 — Letter received from NRCB notifying that Gideon Berniko was applying for a 2000 hog feeder operation March 14, 2003 — Letter received from NRCB noting that under the Agricultural Practices Act NRCB may only consider applications for new or expanding CFO s and the construction expansion or modification of manure storage facilities In the absence of an expansion new construction or change of use, an NRCB permit is not required NRCB recommended that the two landowners 68 • • n �J submit a letter in which they both agree to operate their hog facilities as one unit If at any point a breakdown of the agreement would occur, enforcement action can be taken by the NRCB NRCB requested confirmation that the aforementioned recommendations would satisfy Kneehill County March 14, 2003 — Letter submitted by Stephen Berniko to NRCB indicating that he was withdrawing his application March 18, 2003 — Letter submitted by Gideon Bermko to NRCB indicating that he was withdrawing his application April 8, 2003 — Letter from NRCB, with a letter attached from Stephen and Gideon Bermko, indicating their agreement to operate as one unit April 15 2003 MPC decision to agree in principle with the NRCB recommendation Planning Department was directed to place a caveat on both titles in order that any future purchasers may be aware of the nonconformance of the hog operations located at the NW 26 30 25 W4 and SW 35 30 25 W4 locations July 17, 2003 — Letter sent to Brownlee Fryett requesting services in placing caveats on both parcels August 26, 2003 — Letter received from Brownlee Fryett's with recommendations as to how to approach the situation. Discussion The following is a summary of the report from Brownlee Fryett The original letter is also attached for your information Their first note was that the MPC does not have jurisdiction to interpret previous decisions or previously issued Development Permits Consequently, any decision with respect to how to proceed in this matter should be made at a Council level and should, if possible be framed as a policy decision in order to limit any potential liability associated with enforcement Condition 12 is very clear that if either of the parcels should be sold, a new application for a development permit is required Therefore, there is a good argument that Condition 12 created a temporary development permit and that upon the north parcels being sold to Gideon Bermko, the development permit expired and the operation is currently being run without a valid development permit However, Condition 12 may not fit within the confines of a temporary permit within the Land Use Bylaw, as the sale of the Parcel would not necessarily have occurred within the one year time frame allowed for a temporary permit Even if there were an argument that the permit did not expire Condition 12 has clearly been violated .5 • CJ • Brownlee Fryett s position is that the Operation is presently being operated in contravention of the original Development Permit, or without a permit and therefore the County has 3 options 1) Advise the NRCB that the proposal does not fulfill the requirements of the Development Permit and that a new development permit will be required If the NRCB maintains its position that it does not have jurisdiction to hear an application with respect to this operation the MPC would likely have jurisdiction to hear and decide an application for a new development permit If the Bermko's do not wish to apply for the new permit on their own initiative, the County could issue a stop order directing that the Operation be discontinued until a new development permit is in place The NRCB may step in should the County decide to issue a stop order, or upon notice that the Development Permit is expired Brownlee Fryett recommends that the County attempt to resolve this jurisdictional issue with the NRCB if this option is chosen by Council 2) Advise the NRCB that the proposal does not fulfill the requirements of the Development Permit and that an amendment to the Development Permit is required The amendment could (a) vary Condition 12 such that the requirement for a new application would only be required if the sale of the Parcel is to a non owner/operator or (b) amend the `applicant" such that Gideon Berniko is a co applicant Brownlee Fryett does caution that the law is not clear on this point and there is the potential for an application that has been amended to be opened up and the entire scope of the permit could be reviewed again Also, as discussed earlier, if the Development Permit expired in 2002, it would have ceased to exist and could not be amended 3) The County accepts the NRCB proposal Brownlee Fryett cautions that based on the context of the decision and the wording of the Development Permit, there is doubt that the NRCB proposal satisfies Condition 12 One of Brownlee Fryett's concerns in this option is that "affected persons' could allege that the County is amending the Development Permit without following the process prescribed by the MGA However this depends largely on the political climate surrounding this operation They also noted that if the County determines that it wishes to actively endorse the NRCB Proposal it should not rely on the MPC resolution as the basis of the decision as the MPC did not have jurisdiction to render this decision Registration of Caveats The County must have a registerable interest recognized in the Land Titles Act to be able to register caveats against the parcels A development agreement between the landowners and the County may entitle the County to register caveats against both parcels, however, it does not guarantee that such a caveat would be found valid if challenged 70 A possible alternative would be to have the Bermko s register a restrictive covenant on each of their titles The precise terms of the restrictive covenant prohibiting the operation of a CFO, upon the sale of one of the parcels to a non owner operator, would have to be carefully worded in an agreement between the Berniko s It should also include a requirement that notice be given to the County and/or the NRCB of the sale of one or both of the Parcels Again, it may or may not be found to be valid if ever challenged in court However, once registered on title, it would, at a minimum, serve the purpose of giving notice of the nature of the Development Permit to subsequent purchasers It may be in Council's, and all other involved parties best interest to cooperate since there does not seem to be any unstable political or other `issues' arising from these operations (i.e nuisances) Financial Implication The financial implication will depend on what option Council takes and what extent further legal assistance will be required Recommendation That Council 1) Accept the NRCB Proposal to have the Berniko's agree to run the operation on both parcels as one unit 2) Accept an Agreement between the Berniko's to function as a single operation as sufficient to satisfy Condition 12 of the Development Permit 3) Enter into a Development Agreement with the Bermko s that specifically entitles the County to register a caveat against both parcels eanna Keiver Corporate Services Clerk 71