HomeMy WebLinkAbout2003-09-05 Council Minutes0
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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
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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
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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
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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
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