Hutterian Brethren of Summerland v Vulcan County

LAND AND PROPERTY RIGHTS TRIBUNAL

Citation:

Hutterian Brethren of Summerland v Vulcan County, 2022 ABLPRT 555

Date:

File No.

2022-04-29

D21/VULC/CO-021

Decision No. LPRT2022/MG0555

Municipality: Vulcan County

In the matter of an appeal from a decision of Vulcan County Development Authority (DA) respecting

the proposed development of Multi-Unit dwellings, a kitchen and kitchen preparation area, a school, a

kindergarten, a church and a cemetery under Part 17 of the Municipal Government Act, Chapter M-26

RSA 2000, (Act).

BETWEEN:

Hutterian Brethren of Summerland

Appellant

- and -

Vulcan County

Respondent Authority

BEFORE: D. Piecowye, Presiding Officer

W. Jackson, Member

D. Woolsey, Member

(Panel)

K. Lau, Case Manager

DECISION

APPEARANCES

See Appendix A

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This is an appeal to the Land and Property Rights Tribunal (LPRT or Tribunal) from a decision of Vulcan

County DA respecting an application for a development permit affecting NW 12-13-24 W4M. The

hearing was held via videoconference on December 13, 16 and 17, 2021 after notifying interested parties.

OVERVIEW

[1]

This appeal concerns Vulcan County’s (County) refusal of a development application by the

Hutterite Brethren of Summerland for four multi-unit dwellings, a kitchen, a kitchen preparation area, a

church, a school, a kindergarten and a cemetery on a quarter section four miles south and two miles east

of the Village of Carmangay. The proposed uses are discretionary in the Vulcan County Land Use Bylaw

(LUB). The quarter section is also the site of a 2018 Natural Resource Conservation Board (NRCB)

approval of a confined feeding operation (CFO). The proposed development, if approved, would facilitate

the establishment of the Summerland Hutterite Colony (Summerland).

[2]

Summerland appealed the refusal on the basis that the application is consistent with the South

Saskatchewan Regional Plan (SSRP), the Vulcan County Municipal Development (MDP) and the LUB

and does not impact the surrounding farmsteads or the Village of Carmangay. Nearby farm

owners/residents and village residents provided detailed testimony describing the expected impact of the

proposed development and the reasons for their opposition to the application. Expert witnesses provided

reports and testimony primarily related to the SSRP, the MDP and the LUB on behalf of each of the

parties.

[3]

The Tribunal approved the application with the 14 conditions that were recommended by the

County should the development be approved. The Tribunal concluded that the application was consistent

with the relevant provisions of the SSRP, and the MDP. The proposed uses do not require any relaxation

of the LUB development standards, and have minimal or no impact on the surrounding area, its residents,

or on Carmangay. The LPRT concluded the Landowners’ concerns are almost entirely related to the

potential impact of the NRCB-approved CFO. The LPRT has no jurisdiction to hear an appeal of the

NRCB approval of the CFO.

REASONS APPEAL HEARD BY LPRT INSTEAD OF SDAB

[4]

The appeal was filed with the LPRT instead of the local subdivision and development appeal

board (SDAB) because, s. 685(2.1)(a) of the Act and s. 2 of the Subdivision and Development Appeal

Regulation directs development appeals to the LPRT when the land that is the subject of the application is

the subject of a license, permit, approval or other authorization granted by the NRCB, Energy Resources

Conservation Board, Alberta Energy Regulator, Alberta Energy and Utilities Board, Alberta Utilities

Commission or the Minister of Environment and Parks (AEP).

[5]

In this case, the subject land is the subject of approvals granted by the NRCB and by AEP.

PROPOSAL

[6]

To develop four multi-unit dwellings (24 housing units), a kitchen and kitchen preparation area, a

school, a kindergarten, a church, and a cemetery on NE and NW 12-13-24 W4M in Vulcan County.

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BACKGROUND

[7]

This appeal concerns a development permit application made by the Hutterite Brethren of

Summerland (Summerland/Summerland Colony). The subject property is districted Rural General (RG)

in the Vulcan County LUB. A series of additional planning documents also impact land use planning

decisions in Vulcan County. The County is within the boundaries of the SSRP enacted pursuant to the

Alberta Land Stewardship Act (ALSA). The Vulcan County MDP contains a series of planning policies

related to development throughout the municipality. Further, the subject quarter is within the boundaries

of the Vulcan County/Lethbridge County Intermunicipal Development Plan (IDP).

[8]

The Summerland development application was made for multi-unit dwellings (4), a school, a

kindergarten, a church and a cemetery, all of which are listed as discretionary uses in the LUB, and a

kitchen and kitchen preparation area which are considered accessory uses. On August 1, 2021 the

Applicant/Appellant was advised

Vulcan County has deemed your development permit application for Multiunit Dwellings,

Public/Institutional Uses (School/Kindergarten/Church) and Accessory Buildings

(Kitchen/Prep) in Rural General located on NE and NW 12-13-24 W4 refused.

The County did not make a decision on the cemetery component of the application. Summerland appealed

the refusal.

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Decision No. LPRT2022/MG0555

[9]

The subject property is about 6.1 km (3.8 miles) southwest of the Village of Carmangay

(Village). The Village, and a number of its residents oppose the proposed development.

[10]

The surrounding lands are agricultural. There is a residence on SW 12, immediately south of the

subject quarter, and scattered farmsteads are in the vicinity, but not immediately adjacent to the subject

site. A number of landowners, residents of either Vulcan County or Lethbridge County, raised concerns

regarding the proposed development.

[11]

On January 23, 2018 an NRCB Approval Officer issued Decision Summary LA16046

conditionally approving the confined feeding operation (CFO) proposed by Summerland on the north half

of 12-13-24 W4M. Subsequently, the NRCB considered a Request for Review pursuant to the Agriculture

Operations Practices Act (AOPA) and on March 21, 2018 issued a Board Decision stating that the issues

raised by the parties “have no merit.” The approval of the proposed development would facilitate the

establishment of the Summerland Hutterite Colony.

ISSUES

[12]

In all cases, the legislation requires the LPRT to address whether a proposal complies with the

Act, the Subdivision and Development Regulation (Regulation), the LUB, any statutory plans, the Land

Use Policies (LUP), and any applicable ALSA regional plan – in this case is the SSRP. Against this

backdrop, the parties focused on the following specific issues:

1. Is the proposed development consistent with the relevant provisions of the SSRP, the MDP, and

the Vulcan County/Lethbridge County Intermunicipal Development Plan (IDP)?

2. Does the proposed development comply with the relevant provisions of the Vulcan County LUB?

3. Are the design, nature and characteristics of the proposed development such that the proposal is

contrary to the Regulation or other relevant Provincial legislation?

4. Should the proposed discretionary use be approved given its location, nature and potential

impact?

SUMMARY OF THE DEVELOPMENT AUTHORITY’S POSITION

[13]

Ms. Erickson, Vulcan County Manager of Development Services, provided evidence on behalf of

the Development Authority (DA) relating to the development application, its processing, and the DA’s

decision.

[14]

Development applications for discretionary uses are presented to the Vulcan County Municipal

Planning Commission (MPC) for decision. A Request for Decision (Development Permit 37-2021,

Hutterian Brethren of Summerland, Multi-Unit Dwellings (24 units), Public/Institutional Uses, Accessory

Buildings) was presented to the MPC at the July 14, 2021 meeting. A motion to approve the proposed

development was lost on tie vote and the Applicant (now Appellant) was subsequently advised of the

“deemed refusal”.

[15]

Pursuant to the NRCB Decision, the CFO construction is required to be completed by 2026. A

layer barn has been built. A number of auxiliary (to the barn) structures including electrical, plumbing,

blacksmith, and carpentry buildings and a concrete batch plant, are at varying degrees of completion.

These buildings, located on the subject property, are permitted under the NRCB approval.

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Decision No. LPRT2022/MG0555

[16]

With regards to site servicing the MPC was advised by County Administration that:

a) Pursuant to MDP Policy 4.3(d) intensive agriculture should have sufficient quantity and

quality of water supply and that Section 11 (Schedule 4) requires that suitable development

sites have an adequate water supply.

b) The proposal is serviced by water from both wells (for household and institutional uses) and a

dugout system (supplied by Lethbridge Northern Irrigation District); the District advised that

there is an adequate volume of water for the immediate needs of the applicant/owner.

c) Section 12 (Schedule 4) of the LUB indicates that every development shall be required to

install a sewage disposal system which has been approved by the authority having

jurisdiction. The development will be serviced by a closed sewage system; the system is

engineered and has received provincial approval; it is currently being used by the barn on

site. After treatment the effluent is disposed in a field.

[17]

With regards to access, road construction and dust control the MPC was advised by County

Administration that:

a) Section 2 (Schedule 4) of the LUB requires all developments to have direct legal and

developed physical access to a public roadway to the satisfaction of the MPC and that the

implementation of a dust control/abatement measure may be considered. The subject site has

legal access to Range Road 241.

b) The application was circulated to Vulcan County Operations; no concerns or objections were

raised. Further, no setbacks are required in the RG district.

c) The application was circulated to Vulcan County Engineering and Vulcan County Fire

Protection; no concerns were raised and the planned fire suppression onsite (hydrants) was

supported.

d) The application was circulated to Fortis Alberta, Telus, and Vulcan County Public Works. No

concerns were raised.

e) The application was circulated to the Village of Carmangay, to Lethbridge County, and to

surrounding landowners consistent with the LUB consultation procedures. The County

received objections from the Village and from a number of landowners. The County also

received a number of letters of support. No concerns or objections were raised by Lethbridge

County.

f) The application was reviewed in consideration of the provisions of both the MDP and the

LUB; no glaring conflicts or supporting statements were identified.

g) The application does not require any setback or other waivers as the proposal is incompliance

with the LUB.

[18]

Two Water Act Approvals on the subject property have been granted to Summerland and another

approval has been issued by AEP related to the infill and replacement of 1.53 ha of wetland.

[19]

In response to questioning Ms. Erickson advised that:

a) The application had been deemed complete.

b) The cemetery component of the application, after discussion with the Applicant, had been

removed from the application before the presentation to the MPC on the understanding that

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only Provincial approval was required. The County advised that traditionally it did not issue

development permits for cemeteries, and agreed that in the revised LUB a cemetery is listed

as a discretionary use in the RG District.

c) The LUB does not define a “colony”; rather, the structures under consideration are

specifically listed.

d) The SSRP was reviewed and no provisions in the high level document were found to relate

to the application.

[20]

The County provided the LPRT with 14 recommended conditions should the application be

approved:

1. No Development authorized by this Development Permit shall commence:

a. Until at least 21 days after the issue of the Development Permit, or

b. If an appeal is made, until the appeal is decided on.

2. That the applicant must participate in Vulcan County’s Dust Abatement Program, to the

satisfaction of Vulcan County, or as Directed by the Director of Operations.

3. All outstanding taxes owed to Vulcan County shall be paid prior to the commencement of this

development.

4. The minimum/maximum requirements for all setbacks as established in Land Use Bylaw 2020-

028 are met.

5. That prior to commencement of construction, the applicant must provide evidence of an adequate

potable water supply.

6. Any permits or approvals required for sanitary sewage and water services in accordance with

Alberta Safety Codes Act, Municipal Affairs, and/or Alberta Environment & Parks shall be

submitted to the County. (where applicable)

7. No buildings shall be used for commercial purposes and the sale of materials produced is

prohibited unless a separate development permit for commercial operations is obtained.

8. This is not a building permit, all Permits as required under the Safety Codes Act and its

regulations shall be obtained and a copy of the Building Permit and any other required Safety

Code Act approvals or permits shall be submitted to the County.

9. The applicant is solely responsible to obtain and comply with any other required Municipal,

Provincial or Federal government permits, approvals, or licenses.

10. All outdoor building and site lighting shall be suitably shielded and shall be downward cast.

11. This Development Permit is valid for 24 months from the date of issue unless the Municipal

Planning Commission extends the term of the Development Permit in accordance with the Land

Use Bylaw.

12. Construction shall be limited to the hours of 6:00 a.m. to 8:00 p.m., 6 days per week; with no

construction on Sundays and statutory holidays including New Year's Day, Alberta Family Day,

Good Friday, Victoria Day, Canada Day, Labour Day, Remembrance Day, and Christmas Day.

13. That the applicant consolidates the three separate parcels that are included within the

development.

14. That the applicant work with the Director of Protective Services on a fire suppression plan.

[21]

In response to questioning, Ms. Erickson advised that:

a) The recommended conditions were standard on many applications, especially large-scale

projects.

b) Vulcan County does not have bylaws relating to construction on holidays.

c) Recommended Condition # 12 (re: additional commercial use) has been an approval

condition for other Hutterite colonies.

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SUMMARY OF THE APPELLANT’S POSITION

Introductory Remarks

[22]

The development application is for 10 buildings including multi-unit residences (four buildings,

24 units), a kitchen and kitchen prep area, a school, a kindergarten, a church and a cemetery. The

application meets the requirements of the SSRP, the MDP, the LUB, and the Act.

[23]

The LUB was amended in January 2021 and now includes s. 34.3, which establishes what the DA

must consider to decide a discretionary use application.

[24]

The LUB allows submission of a new or revised development application at the same location six

months after receipt of refusal. Summerland made previous applications at a different location in 2013,

2014, and 2015 and at the current site in 2016 and 2018. Application details changed after each

application as Summerland responded to the reasons for refusal. In particular, the following significant

changes were made:

a) The proposed location for the new Summerland Colony was initially 2.5 km northwest of

Carmangay; the location of the current application is 6.1 km southwest of the Village.

b) Previously, sewage was to be treated in a two stage evaporation lagoon; the current proposal

relies on a closed system which is below ground and 100% odourless.

[25]

Evidence and testimony in support of the application was provided by:

 Mr. Hofer regarding the development permit application;

 Mr. Sparks regarding the proposed sewage system;

 Mr. Westersund, a potential expert witness, regarding the geography of Hutterite colonies, their

economic benefits, and wind patterns; and

 Ms. Vizzutti, a potential expert witness, regarding the merits of the proposed development and its

consistency with applicable plans and the LUB.

Mr. Hofer on Behalf of the Hutterian Brethren of Summerland

[26]

Mr. Hofer is a Minister of the Hutterian Brethren of Summerland, and assists with construction

management and ground level work for the Summerland Colony.

[27]

The Clear Lake Colony in the Municipal District of Willow Creek is at capacity with a population

of 162; it is time to split and establish a “daughter colony”. Vulcan County has been the desired location

for some time; it has a number of other Hutterite colonies and is adjacent to Clear Lake Colony. The

proposed location is on land purchased by Clear Lake Colony in the early 1990’s.

[28]

In response to questions, Mr. Hofer advised that the establishment of a new colony is preferable

to the further residential expansion of the Clear Lake Colony. At present the members travel the 17 km

from Clear Lake Colony multiple times a day to manage the CFO at Summerland; it is not feasible to

continue in this manner, especially considering that the CFO is an around the clock operation. If the

residential component of the colony can be completed commuting to Clear Lake will no longer be

required; it was always the intent to develop the residential component in conjunction with the CFO

operation.

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[29]

Mr. Hofer spoke of the effort to build for the future and advised that, at the outset, approximately

80 people, including 15 to 20 children, will be residing at the colony. The colony is engaged in farming

and owns an estimated 6,000 to 7,000 acres in the vicinity and additional lands east of Champion. The

Colony plans to expand to 120 members and that will be accompanied by an expansion of the residential

component. The kindergarten will eventually accommodate 20 children and the school 40 students; a gym

will be located in the school. The colony will be similar to the 12 other Hutterite colonies located in

Vulcan County.

[30]

Following the refusal of previous applications a location further away from Carmangay and from

neighbours/farmsteads was sought. Colony members sought advice from County staff. Water supply is

critical for a colony with a CFO operation; three locations were looked at, however two had water issues.

The colony members favoured the proposed location. A series of site photos taken by drone at 3 year

intervals was provided and the subject site cannot be seen from Carmangay.

[31]

Mr. Hofer referred to a series of maps showing the planned layout of the development, the total

footprint of the central part of the colony; excluding the school and the cemetery, the footprint is 180 m

by 130 m. The buildings and facilities to the east of the proposed development including the layer barn,

carpentry, electrical and plumbing buildings, the concrete batching plant, and the above ground slurry pit,

are all necessary for the CFO operation and were part of the NRCB approval. Odour from the slurry tank

is reduced because it is fed from the bottom and the possibility of placing a lid on the tank is being

explored.

[32]

Mr. Hofer advised that after the 2018 refusal the Colony engaged SD Consulting who

recommended a closed sewage system (AdvanTex) which is completely odourless and much more

expensive than the wastewater lagoon. The first phase is constructed and serves the shops, farm storage

buildings and barns, and is working without any issues. Phase 2 is intended to serve the buildings that are

the subject of the current application, and a Phase 3 will serve future expansion. The closed system will

be used solely for human waste.

[33]

The new wetland, approved by AEP and located adjacent to the proposed new colony, has been

constructed. The flow of water has been directed around the Colony, and the wetland now holds water

year round - an improvement over the former wetland. A shelterbelt and trees will be planted on the west

boundary to protect the colony from the wind which is generally from west to east.

[34]

Mr. Hofer described the Colony’s plans for water, stating there are five wells on the Colony’s

land (in SE12 south of the freshwater reservoir) with a limited use approval by AEP; an application for

full use has been submitted. The wells will continue to be the water source for human consumption. The

Colony has an agreement with the Lethbridge Northern Irrigation District (LNID) to supply water which

will be used for animals and for tending the garden. There is no other irrigation planned.

[35]

The nearest sewage, water or drainage facilities to the buildings that are the subject of the

application are the septic field and the slurry pit; the planned development is about 600 m from these

facilities, above the 300 m minimum distance.

[36]

Evidence was entered relating to the details of NRCB approval process, the names of persons

filing objections to the proposed CFO with the NRCB and their residence locations. It was emphasized

that no persons were identified by the NRCB as being “directly affected”.

[37]

Mr. Hofer described Summerland’s contributions to the Vulcan County community and advised

that the intention is to purchase 95% of the construction material required within a 50 km radius of the

development and will also use local contractors if needed.

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[38]

The Appellant had no objection to the County’s 14 recommended conditions should the

development be approved with the exception of #11 and #12. The Appellant requested that the validity of

permit be extended from 2 years to 3 years, that certain statutory holidays be excluded from the restricted

work day condition (Family Day, Canada Day, Victoria Day, Labour Day, Remembrance Day), and that

the hours of construction be expanded from 6 am - 8 pm to 5 am - 9 pm.

[39]

Mr. Hofer confirmed the Appellant’s interest in developing a cemetery as shown on the Colony

plan explaining that a cemetery is a standard land use on a Hutterite Colony.

Mr. Sparks in Regards to Sewage Treatment

[40]

Mr. Sparks stated that he is a professional engineer/hydrogeologist and a principal in SD

Consulting, a company involved in the provision of water and wastewater systems for remote

communities that are not served by municipal systems. SD Consulting has been retained by the

Summerland Colony to design and install a closed wastewater system for both the agricultural and

residential phases of the proposed development.

[41]

The Design Summary and technical specifications of the proposed AdvanTex treatment system

manufactured by Orenco Systems was provided. The system is a significant upgrade from a wastewater

lagoon. It involves two phases which break down and distribute effluent and waste: septic tanks for

primary treatment, a package treatment plant for secondary treatment, as well as subsurface trenches for

soil disposal and effluent polishing. Mr. Sparks highlighted the odourless nature of the system noting that

it was positioned underground and that wastewater did not come in contact with the atmosphere. He

advised that there may be short periods where there is odour during annual inspections.

[42]

The proposed system is noiseless and has a 30 year life cycle. A list of successful 17 Alberta

projects utilizing similar subsurface treatment systems was provided; some of these systems serve a much

larger population in environmentally sensitive locations.

[43]

Phase 1 of the project which serves the facilities in the farm buildings was installed in the fall of

2020. Phase 2, the residential component, is being designed for 130 residents and requires Municipal

Affairs (Safety Codes) approval.

[44]

In response to questions Mr. Sparks stated that he was not an engineer with professional expertise

in sewage disposal, odour dispersal, wind patterns and was not presenting evidence as an expert witness.

Mr. Westersund on the Characteristics, Contributions and Separation of Hutterite Colonies

Preliminary Matter

[45]

Mr. Westersund is a partner at the consulting firm MNP LLP (MNP), which specializes in

government affairs and public policy and has 60 years of experience advising Hutterite colonies in

Western Canada. Mr. Westersund has advocated to the government on behalf of Hutterites in Alberta.

[46]

Counsel for the Affected Persons asked that Mr. Westersund not be accepted as an expert in

“Hutterite Affairs” and economics, geography of Colony locations and wind patterns in the area. Counsel

also asked the LPRT to refuse to admit the MNP report, which addresses these matters (MNP report). In

support of this request, Counsel referred to cases including White Burgess Langille Inman v Abbott and

Haliburton Co. 2015 SCC 23 (White Burgess), which explains the rules governing admission of expert

evidence in court proceedings. He argued Mr. Westersund’s evidence should be excluded under these

rules, since he is a paid lobbyist, and his report relies on proprietary information that is not possible to

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verify; in addition, Mr. Westersund has no expertise in wind patterns, and his report relies on information

from a public website in this respect.

[47]

Following questioning, Appellant’s Counsel conceded that Mr. Westersund should not be

considered an expert witness, but argued the report should be admitted, as it contains relevant

information, and the LPRT has discretion to give it appropriate weight.

Preliminary Matter – Decision and Reasons

[48]

The LPRT decided to hear testimony from Mr. Westersund - although not as an expert.

Furthermore, this evidence would be closely assessed to determine how much, if any, weight it would be

given based on the witness’s potential lack of objectivity and in areas other than Hutterite Affairs, his lack

of special expertise.

[49]

The LPRT considered the case law presented by all parties, and notes their general direction

concerning admissibility and potential pitfalls of expert evidence. The LPRT also notes these cases deal

with civil litigation or injunctive relief before the courts where the rules of evidence apply. Pursuant to s.

10(1) of the Land and Property Rights Tribunal Act L-2.3 2020 (LPRT Act) these rules do not apply to

this proceeding:

10(1) The Tribunal is not bound by the rules of evidence or any other law applicable to

court proceedings and has the power to determine admissibility, relevance and weight of

any evidence in determining any matter within its jurisdiction.

[50]

The LPRT finds that in this case hearing from a variety of witnesses with varying degrees of

independence and expertise about relevant matters is useful in obtaining a broad perspective of the issues

at hand and their potential impacts. However, the weight accorded to a witness’s evidence will vary and

factors such as lack of objectivity and expertise.

[51]

Mr. Westersund presented the MNP report which focused on four specific areas:

(a) The economic impact of Hutterite colonies

(b) The number and location of Hutterite colonies in Southern Alberta

(c) The location of specific Hutterite colonies relative to nearby communities

(d) A Vulcan County wind analysis

(a) Economic Impact

[52]

The economic impact of the Summerland Colony on the surrounding community will be positive

with an initial estimated investment of $35 million associated with its development, and an ongoing

annual economic stimulus of an estimated $5 million related to operations and maintenance. Mr.

Westersund advised that the economic contribution of Hutterite colonies is an important fact to be

considered, making specific reference to s. 34.3 (d) of the LUB relating to the impact of discretionary use

proposals.

(b) Number and Location

[53]

There are 190 Hutterite colonies in Alberta making a substantial contribution to Alberta

agriculture and the Provincial economy. Over 100 of the colonies are located south of Highway 1,

including 12 in Vulcan County.

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(c) Distance From Communities

[54]

Maps were provided showing the calculated distances between 23 Hutterite colonies in Southern

Alberta and nearby communities. Mr. Westersund concluded that 80% of the 23 colonies were closer to

nearby “towns and municipalities” than the Summerland colony will be from Carmangay.

(d) Vulcan County wind analysis

[55]

Mr. Westersund spoke to a series of wind direction graphs and diagrams prepared by MNP based

on publically available data from the Barons, Champion and Travers wind stations. The analysis

concluded the most predominant wind directions do not blow from the Summerland Colony to

Carmangay.

Ms. Vizzutti Regarding the Planning Merits of the Proposed Development

[56]

For 24 years Ms. Vizzutti was the Chief Administrative Officer (CAO) at the MD of Willow

Creek where she had responsibilities related to statutory plan and LUB preparation, adoption, and

interpretation, as well as MPC and SDAB meeting and hearing responsibilities. Ms. Vizzutti has also

acted as planning manager and/or DO and completed a Certificate in Land Use Planning.

[57]

Following questioning, the Tribunal recognized Ms. Vizzutti as an expert witness in the area of

rural development, development applications and development process matters.

[58]

Ms. Vizzutti provided her opinion that the Summerland development application meets the

purpose and intent of the MDP, and is consistent with the Plan’s Philosophy, Mission and Objectives

which focus on the importance of agriculture, agricultural diversification, and the importance of the

family emphasizing that:

 The Hutterian Brethren of Summerland is a prominent and generational member of the

agriculture industry which has diversified over the past 100 years and will operate a family farm

typical of Hutterite families across Western Canada.

 All buildings included in the development application are typical of colony development and a

similar colony layout has been used for the past 6 generations.

 There are no MDP policies which would inhibit the approval of the proposed development.

[59]

Ms. Vizzutti referenced the purpose statement of the Rural General LUB District: To protect the

agricultural land base…while allowing non-agricultural developments which complement the area’s

economy and stated that the proposed development will contribute to the protection of the County’s

agricultural land base while complementing the County’s economy. The land stays in families. The

footprint is minimal given the substantial amount of land the colony owns, most of which is farmed, and

only a small amount of land is taken out of production. Colony land is managed wisely.

[60]

Ms. Vizzutti made specific reference to s. 34.3 (d) of the LUB relating to the compatibility and

impact with respect to adjacent land uses and the greater community concluding that the location is

optimum for the purpose requested.

 Carmangay is 6.1 km away from the proposed development, a substantial distance, so any

possible negative impact is negligible at best.

 The developer has mitigated any and all reasonable concerns regarding sewage management

through the installation of a covered sewage system approved by AEP.

 Dust control can be mitigated through a dust abatement agreement at the site.

 There are no residences on Twp. Road 132 between the site and Highway 23; traffic would not

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directly impact farm home sites.

 There appears to be no record of concerns being lodged by the closest farm neighbour (2.66 km to

the northwest).

[61]

Ms. Vizzutti referred to s. 34.3 (e) of the LUB which addresses the merits of the proposal and

described specific areas including:

 The expected contribution to Provincial and local economies.

 The long term protection of agricultural land as farmland and the contribution to agricultural

diversification.

 The enhanced protection of the food supply chain.

 Significant in-kind, monetary and voluntary contributions to the greater community.

SUMMARY OF AFFECTED PERSONS’ POSITIONS

Opening Remarks

[62]

A group of area landowners and the Village of Carmangay are opposed to the proposed

development and have previously provided input on the Summerland development applications processed

by Vulcan County and the appeals heard by the County SDAB. Letters submitted to the County MPC

outlining the reasons for their objections were provided.

Ms. Beunder Regarding Planning Issues

[63]

Ms. Beunder was asked to give expert evidence about land use planning issues on behalf of the

landowner’s group and the Village. She listed her qualifications as a registered professional planner,

including her education and professional experience over a 28 year career in both the public and private

sectors. After questioning, the Panel accepted Ms. Beunder as an expert in the area of land use planning.

[64]

Ms. Beunder explained that her presentation analyzes the evidence submitted by the Appellant

and that she was not asked to provide additional evidence. Her analysis examines technical considerations

such as plans and bylaws, and operational considerations such as setbacks; it also interprets various pieces

of legislation. It reviews the SSRP and MDP agricultural policies, and whether the proposal is consistent

with those policies. Further, the report evaluates the development proposal to determine if it complies

with the provisions of the LUB’s Rural General (RG) District.

[65]

Ms. Beunder advised that splitting Hutterite colonies can cause issues and be a source of conflict

and that the summary of issues raised by adjacent landowners listed in s. 2.3 of her report reflects what is

at issue. A colony is like a small village; it brings with it not only a CFO operation, but 130 or more new

residents, multi-unit housing at densities not otherwise achievable in an agricultural area, institutional

uses and even industrial ones. It is an agricultural land fragmentation even though there is no subdivision.

South Saskatchewan Regional Plan

[66]

Ms. Beunder’s analysis focused on determining if the proposed development aligns with the

SSRP’s direction for agricultural land use, concluding that the proposed development conflicts with a

number of the agricultural policies:

 The entire NW 12 can no longer be used for crops – the land has been converted away from

agriculture to support multi-unit residential and institutional uses within an existing CFO; CFO

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buildings and facilities have been constructed including a concrete batch mixing plant for which

there appears to be no NRCB or municipal approval. The proposed multi-unit dwellings and

institutional uses may not be compatible with a fully developed CFO operation which occupies

much of NW 12.

 Multi-unit dwellings and institutional uses are non-compliant with s. 8.19 which states that

municipalities are expected to identify areas where agricultural activities, including extensive

and intensive agricultural and associated activities should be the primary land use in the region.

 NE 12 will be supporting 130 persons and 134,000 animals; it will no longer be able to be used

for principally agricultural pursuits. This conflicts with and works against:

- Strategy 1 which states that the strategic direction of the region should be facilitated by

planning policies and decisions that maintain an agricultural land base by reducing

fragmentation and conversion of agricultural land.

- Section 8.21 which states that municipalities are expected to employ appropriate planning

tools to direct non-agricultural subdivision and development to areas where such

development will not constrain agricultural activities, or to areas of lower quality agricultural

lands.

- Section 8.22 which states that municipalities are expected to minimize conflicts between

intensive agricultural operations and incompatible land uses by using appropriate planning

tools, setback distances and other mitigating measures. Planning tools such as setbacks and

density provisions would normally apply on surrounding lands, but do not on this project as it

is proposed.

Vulcan County Municipal Development Plan

[67]

Ms. Beunder’s analysis focused on determining if the proposed development is consistent with

the MDP’s policies related to agriculture; it concluded that the proposed development conflicts with a

number of MDP policies:

 The word “colony” does not appear in the MDP (or the LUB); there are no specific policies

related to or recognition of existing colonies – the type of development density that is proposed

would not be afforded to landowners outside of a hamlet/community in Vulcan County’s current

planning policy.

 The planning objective of the County is to support the continuation of grain farming and allow for

the diversification of agriculture. The establishment of a CFO is not what the MDP envisions as

diversification. This is made clear in the “Objectives” provisions of the Agriculture section of the

MDP and specifically in Policies 1.2 and 1.3.

1.2 The County shall ensure that policies in the Land Use Bylaw protect agricultural

land from non-agricultural development

1.3. Better utilizing land and promoting more compact development are two

methods that can limit land conservation. The County shall ensure that the

application of these methods are utilized in the decision making process.

 The multi-unit housing and the institutional uses are uses that should not be located in areas of

intensive agricultural activity.

 While the residential and institutional development being proposed is compact, the population it

will support is much more significant than what is contemplated by the MDP.

 The intensity of this site far exceeds that contemplated by the objectives of the MDP.

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 The proposed development would reduce the amount of land available for traditional agriculture

and in the process lead to a loss in the number of traditional farm families.

Vulcan County/Lethbridge County Intermunicipal Development Plan

[68]

This plan identifies a CFO on the subject property and agriculture as the predominant land use in

the area.

Vulcan County Land Use Bylaw

[69]

Section 19 addresses Suitability of Sites and provides that the DA may refuse to issue a

development permit despite the proposal being a permitted or discretionary use if it determines, in its

opinion, the site of the proposed building or use is not “safe or suitable” based on 17 specific site

characteristics or conditions. The proposed development does not comply with s. 19.1(f) and s. 19.1(k).

[70]

Section 19.1 (f) states that a Permit may be refused if a proposal does not comply with the SSRP,

Subdivision and Development Regulation, or any other applicable statutory plan.

 On the basis of earlier evidence and testimony related to the statutory plans Ms. Beunder

concluded that the proposal did not comply with 19.1(f) of the LUB.

[71]

Section 19.1 (k) states that a permit may be refused if the proposal is situated closer to a confined

feeding operation than the minimum distance separation (MDS) recommended by the NRCB. In this case

the NRCB calculated an MDS of 804 m. Ms. Beunder argued that the proposal does not comply with s.

19.1(k) based on the following:

 The proposed residences and institutional uses are within the 804 m MDS limit and are subject to

MDS setbacks just as residences on nearby properties are.

 The NRCB decision did not contemplate, approve or list any of the residential or institutional

uses that are being sought.

 There is no evidence that the setback has been waived.

 The residence on the quarter section to the south is also within the MDS.

[72]

Ms. Beunder also identified a number of other LUB provisions with which the development

proposal did not or might not comply:

 19.1 (b) Permit may be refused if the site has a high water table or soil conditions which make

the site unsuitable for foundations and/or sewage disposal in accordance with provincial

regulations.

 Section. 19.1 (e) Permit may be refused if site is situated in an area which may be prone to

flooding, subsidence or erosion.

 Section. 19.1 (l) Permit may be refused if the proposed development does not have an adequate

(quality or volume) water supply.

 Section. 19.1 (n) Permit may be refused if proposed development does not have an adequate

means of stormwater disposal.

 Section. 20.1 restricts the number of dwelling units on a parcel to one unless allowed in the land

use district for which the application was made. The Rural General provisions do not authorize

more than one dwelling unit on a parcel.

 LUB s. 32 addresses the Determination of a Complete Development Permit Application. Evidence

is lacking that the development application was deemed complete by the County; further there is

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no indication that the required transportation impact assessment, biophysical impact assessment,

and historical resources impact assessment have been completed.

[73]

Ms. Beunder provided her opinion on how a decision on a discretionary use application

could/should be made: a cumulative impact approach could be taken – while one or two

provisions/requirements might be waived without an issue, a substantial number of needed waivers

should likely result in a refusal decision.

[74]

Ms. Beunder advised that the proposed development contravenes ss. 12 and 13 of the Regulation:

 The intent of s. 12(3) is to prevent the construction of a school, hospital, food establishment or

residence within 300 m of the working area of an operating wastewater treatment plant.

 The intent of the s. 13(d) is to prevent the construction of a school, hospital, food establishment or

residence within 300 m of a waste storage site.

[75]

Ms. Beunder concluded with the following:

 The intensity of the approved livestock capacity coupled with the proposed residential and

institutional uses on the subject quarter section would result in negative cumulative effects on the

adjacent agricultural operations and negative cumulative effects on the overall human health to a

level that would normally not be permitted.

 The SSRP provision mandating the retention of agriculture in large farmable tracts would not be

upheld with the approval of the development application.

 The proposed project’s intensity and density converts land away from agricultural uses towards

more of a hamlet style of use making it incompatible with the singular farming operations in the

vicinity – there is nothing similar in the surrounding area and it does not reflect the area’s rural

character or current agricultural practices. The project is not supported by the provisions of the

MDP.

 The project’s density does not comply with the intent and purpose statement of the RG district.

 Adjacent landowners would be negatively impacted in that they would be subject to restrictions

that were not applied to the development in question and therefore at a disadvantage.

[76]

In cross examination, Ms. Beunder confirmed her instructions were to only consider the

information submitted with the development permit application, and she did not seek any additional

information beyond what she was given. However, she did make some assumptions where she lacked

sufficient information. Examples include assuming that:

 runoff from livestock waste would flow into ponds,

 potable water would be drawn from LNID rather than wells,

 the CFO would use well water, and

 the concrete plant was not approved by the NRCB.

[77]

Ms. Beunder agreed she was not aware whether food would be consumed in the dwellings, but

believed these were not private facilities because they will have several units. Ms. Beunder also discussed

various legislation including a Regulation under AOPA (AR 267/2001), and the Public Safety Act in

concluding the proposed placement of facilities on the subject lands is not legal.

Evidence and Testimony from Nearby Landowners and the Village of Carmangay

(a) Mr. Smith

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[78]

Mr. Smith lives in Lethbridge, farms 1.25 miles west of Carmangay, and resides at the farm in the

busy season. He is speaking on behalf of his family including his parents who are also landowners in the

area and live on their farm. Much of the family land is between Carmangay and the subject site. Mr.

Smith also owns land in the village and is a member of a group of 14 farm families who are opposed to

the development.

[79]

Mr. Smith’s intention was to set the stage for the Landowner’s evidence and testimony, noting

that the proposed development has had a long history; it has been refused eight times – four times by the

MPC, twice by the SDAB, and twice by the Court of Appeal. During this period the only aspect that has

changed is the sewage treatment; there has been no mitigation of the reasons for refusal and municipal

bylaws have not changed. Further, there has been no indication that past decisions were flawed.

[80]

The Village of Carmangay is also a member of the 14-family group. The village is undergoing

renewal with some new families moving in, a reopening of the school, and a new community centre.

[81]

The proposed new colony is like a village; it is massive in size and scope and is uncharacteristic

for the area - there is nothing else of this magnitude; the footprint (160 to 300 acres) is larger than other

Hutterite colonies. The proponent has said that the subject site cannot be seen from Carmangay; this is not

the case.

[82]

A large colony like Summerland should not be so close to Carmangay. Other newer modern

larger colonies were deliberate in establishing their operations in remote areas where existing towns,

villages and acreages would not be disturbed. Summerland owns a lot of land and has many locations to

choose from, locations that would not negatively affect the Village.

[83]

Summerland has claimed that the distance from the subject property to the Village is typical,

customary and normal. Nothing could be further from the truth – the Affected Persons’ study shows the

distances from colonies to nearby towns and villages (not hamlets) in Vulcan County and in the

surrounding counties:

 The proposed site is 3.39 miles (5.46 km) southwest of Carmangay (calculated from the northeast

corner of NW12 to the southwest village boundary.)

 There are 12 colonies in Vulcan County; the closest to a town or village is the Armada Colony

which is 4.7 miles from the Village of Lomand.

 Wind direction is an important consideration. The closest colony on a southwest angle is the Wild

Rose Colony which is 6.9 miles southwest of the Town of Vulcan; it was established in 1991

when less importance was placed on matters such as air and water quality.

 The situation is similar in the surrounding municipalities. In Newell County the closest colony is

6.9 miles from Bassano; and in Taber County the closest, built in 1994, is 6.9 miles from

Barnwell. In total there are 60 colonies in our seven-county region (plus one more under

construction in Vulcan) – there is not one colony within 3.5 miles of a town or village in a

southwesterly orientation.

 The analysis is most revealing when only the colonies built since 2000 are considered – a total of

13 colonies including 5 in Vulcan County. The closest (Armada Colony) is 4.7 miles from the

nearest town or village; some are so far away it was not worth measuring. Considering only the 8

colonies closest to a town or village, the average is 9.4 miles.

 The recent trend is for new colonies to build at locations much further away from a town or

village than Summerland is proposing. The 9.4 mile average calculation excluded the more

distant colonies built since 2000.

 Adding 24 (soon to be 32) dwelling units to the area will have impacts. Other colonies have a

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similar number of dwellings, but are farther from a town or village and are distant from

farmsteads. In this situation, there are farmsteads in the area surrounding the village and farmers

make use of the village services like the school and the post office.

[84]

With regard to the possible impact of an approval on property values, Mr. Smith opined that a

development of this magnitude would make living in and around Carmangay less desirable and have a

negative effect on property values. The Smith family owns land in and around Carmangay and, like other

families that have spent generations contributing to the local area, has an expectation that they would be

protected from such a large project; Summerland had a lot of choices yet are trying to force a colony into

an area where it will have a negative impact on the existing community. There is a better solution and it

should be explored.

[85]

With regard to possible traffic impacts, Mr. Smith advised that his concerns were minimal – Twp.

Road 132 is graveled and narrow in that area; it requires widening regardless.

[86]

With respect to how the proposed development would affect his enjoyment and use of his

farmland, Mr. Smith stated that his and other families enjoy working, playing, and gathering on their land

– the families have been in the area for generations. Use and enjoyment will be negatively affected –

significantly. The development will be a hardship on families, farmers, acreage owners, the village, and

the next generation. Farming is difficult; it is hard work.

[87]

The short distance between the Colony and the Village, the large size of the Colony, the

southwest angle of the proposed location in relation to the village, the impact of the dust and manure

spreading on air quality, the impact on schools and the community, the cumulative effects of several

colonies in the same area which, when considered together, show the negative impact the proposed

development will have on Carmangay and the surrounding area.

[88]

Mr. Smith advised that he has had extensive business dealings and a good relationship with area

Hutterite colonies and their members over many years and his objections are based solely on the proposed

location.

[89]

In response to questions about the future, Mr. Smith advised that he plans to continue farming

family lands with the intent of passing on something better to the next generation, but he cannot speak to

their long term plans.

(b) Mr. B. McFarland

[90]

Mr. McFarland has lived in the area since 1948; he grew up in the village and, with his wife, has

operated a family farm producing grain, oilseed and hay since 1972. The McFarland farm property is

mainly east of Carmangay with SW 26 (2.5 miles east of Carmangay) being the closest quarter section to

the village. The farm site is one mile south and six miles east of the village.

[91]

Mr. McFarland noted that in 1972 there were no Hutterite colonies in Vulcan County, and now

there are 13 including eight within 25 miles of Carmangay.

[92]

In Mr. McFarland’s opinion the consultation efforts that proceeded Summerland’s choice of

colony location and the applications to the NRCB and to the County were minimal if that. More recently

possibilities were limited by COVID. The consultation practices of a recently developed wind farm in the

area were superior with much better outcomes. In addition, it is worth noting that the wind farm, after

extensive studies, located its turbines to take advantage of the southwest winds.

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[93]

The proposed development is extremely large; it is a corporate farming enterprise operating a

CFO and puts the village and the Carmangay area downwind from a large grouping of confined feeding

barns with its associated sewage system which has the potential to result in health issues.

[94]

Mr. McFarland stated access to the proposed development is inadequate, Twp. Road 132

currently requires widening and upgrading and it would further suffer with the movement of large

equipment. As well the transport of manure from the Summerland site to lands the colony farms north of

the Little Bow River, all leading to the potential for safety issues on Highway 23.

[95]

In response to questioning, Mr. McFarland advised that he plans to continue farming regardless of

whether the proposed development is constructed and would not be directly affected by the presence of

the new residential and institutional uses that are proposed. However, the result would be a substantial

increase in population putting a large burden on infrastructure and potentially requiring public funds

which would otherwise be used elsewhere. Further, Mr. McFarland expressed worries that land purchases

by Summerland and other colonies might result in families leaving the area and, in turn, the Carmangay

School will have difficulty keeping its enrollment at needed levels.

(c) Ms. Nichols

[96]

Ms. Nichols is a fourth generation resident of Carmangay and is the current Village Mayor,

having been elected in October 2021. She appeared before the LPRT on behalf of the Village. Ms.

Nichols noted that Village representatives had, in the past, advised Summerland and the NRCB that the

proposed location was poor in that it was too close to the Village and to existing colonies.

[97]

Despite limited or no growth in the past decade Ms. Nichols spoke of a recent population increase

with new families moving in, the re-opening of the school, and the opening of a new seniors centre. There

is concern that the proposed development will impact village quality of life and future growth – the

viability of the Village will be at risk. Residents will be impacted by odour as a result of being so close to

and downwind from the colony.

[98]

Further, the proposed development is not like the traditional farmsteads that surround

Carmangay; it is too dense, and equates to a small village. One hundred and fifty people living directly

outside of the Village boundary will have a detrimental effect. Most farmers in the area surrounding

Carmangay take part in village life and activities; colony residents do not. This has been the case with the

other colonies in the area.

(d) Mr. T. McFarland

[99]

Mr. McFarland has lived in the area for 60 years; some of the earlier generations of his family

came to the area in 1887. He retired from farming in 2018 due to health issues, sold most of his land and

currently lives in Carmangay. He rents section 23-13-24 southwest of the Village to another farmer.

While he lived on the farm he was subject to odours from the Carmangay Colony when the wind blew

from specific directions, and noted that Carmangay Colony is smaller than Summerland. Mr. McFarland

stressed the importance of health factors in making planning decisions.

[100] Mr. McFarland expressed the following opinions with respect to the Summerland development:

 It will negatively affect property values; no one will want to rent or build in a community

immersed in a constant stink. Carmangay and area residents will need to protect their property

values, health, and overall quality of life. There is no doubt that the area will be impacted by the

predominant southwest winds; the planned sewage treatment for the residential/institutional

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component may not live up to its expectations.

 Summerland’s efforts at consultation were poor; the colony was not up front with its plans and

paid little or no attention to the perspective of area residents. The development should not have

been started before all necessary approvals had been received.

 The proposed development is at the wrong location; “if it was 3 miles upwind from your private

residence you would have no enthusiasm for it.”

[101] In response to questioning, Mr. McFarland advised that he intends to apply for a subdivision on

SW 23-13-24 where his son intends to establish a vegetable garden.

(e) Mr. Hovde

[102] Mr. Hovde has lived in Carmangay for 7 years and was the Mayor from 2017 to 2021. He has

long family roots in the area and owns 14 acres in the river valley area of the Village where his family’s

primary residence is located. The Village has a great setting beside the river, an active recreation and trail

system, a new community centre and some new businesses. Taking advantage of a local solar farm, it is

one of Alberta’s first completely “net-zero” municipalities.

[103] During his time as Mayor Mr. Hovde worked on an intermunicipal development plan with Vulcan

County with the intention of providing a development buffer around the Village. He also spoke to a

community survey dated 2018 that was a Village project; the document described declining residential

and commercial property values. Mr. Hovde stated that the data was from 2017 and advised that since that

time there has been a lot of change – few homes are for sale and assessments are up.

[104] The long standing issue with the proposed Summerland Colony is that it is too close to the

Village; it could easily have been established at a different, less impactful, location. With the winds from

the southwest air pollution is a major concern. It will contribute to making the Village a less desirable

place to live, making it difficult to enjoy the outdoors, and declining property values. As Mayor, Mr.

Hovde never received an explanation as to why the development had to be in the proposed location. Mr.

Hovde recalled that there was no consultation between Summerland and the Village or its residents. He

compared this to a successful consultation process conducted by a grain terminal which established in the

area.

[105] Mr. Hovde expressed his dissatisfaction and concern that the NRCB application process and

project approval took place in advance of the County planning process; he advised that most of the

Village residents had no idea of the nature and size of what was intended, or that it would ever be

considered so close to the Village.

[106] Mr. Hovde requested the Tribunal to consider the rights of the residents of Carmangay who chose

to work, to raise a family, and/or to retire in the Village. If this development is approved “no town or

village will be safe from the harm that’s created.”

(f) Ms. Paulsen

[107] Ms. Paulsen lives in Calgary and owns NE 1-13-24 which is about 2 miles directly south of the

Summerland project site. The land has been in the family for over 100 years; it is rented and farmed. Ms.

Paulsen grew up on an adjacent quarter, leaving in 1961, and intends to pass on the land to her family.

[108] Ms. Paulsen stated that her major concern with the Summerland project relates to water. NE 1 is

at the north end of the LNID; Summerland has permission to draw water from the LNID – the CFO will

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require a great deal of water. Even though she has been assured that the Oldman Dam will continue to

ensure an adequate water supply, her knowledge of Prairie history, her research and her personal

experience with drought cycles makes her worry about the long term water supply. Any water shortage

could result in Ms. Paulsen’s tenant receiving less water which would impact the rent that would be

received. This concern also relates to the wells; Summerland will be introducing the equivalent of a small

village onto the land – the water demands will be substantial.

(g) Mr. Fraser

[109] Mr. Fraser has been a resident of Carmangay for most of his life; he and his wife own their home

and 3 lots and have resided in the Village for 38 years. Mr. Fraser is retired and is a Village councilor.

[110] Mr. Fraser spoke to his concerns and opinions regarding the Summerland project:

 With a colony comes a CFO and therefore substantial odours; Summerland is larger than other

colonies and will have more impact - the controlled runoff pits are especially large.

 There is already a colony to the southeast; when the winds come from that direction one cannot

stand to be outside and outdoor activities are not possible.

 The project will lead to folks moving away from the Village, a decline in property values, and the

Village will have trouble selling the commercial lots that it plans to develop. Summerland does

not need to be so close to the Village.

 The protection of air and water is most important, yet there appears to be a lack of regulation for

this type of project compared to the oil and gas sector for example.

(h) Mr. Bishop

[111] Mr. Bishop lives in the Village of Barons and, along with his parents and other family members,

has substantial farmland in the area, mostly to the south of the proposed development in Lethbridge

County. The closest family owned quarter section is one mile south of the Summerland site (SE 35-12-

24); the quarter section where Mr. Bishop’s parents and brother reside is 2.5 miles south on RR 241. The

Bishops grow grain and oil seeds; some is irrigated and no animals are raised. The intention is to continue

farming.

[112] The proposed location of the development is very close to an existing urban community; it would

be most unusual to see a project with over 100 residents established adjacent to an existing community

with the possible exception of a resort type of development. All of the land in the area is totally

agricultural with the exception of the homesteads where there are one or two residences. With the

exception of historical buildings there are no churches, schools or other institutional uses in the rural area.

He is opposed to the level of density proposed, the multi-unit housing, and the institutional use. Other

farmers and CFO’s would not be permitted to build multi-unit housing – he would not be concerned about

a house or two; however, he has never seen a CFO in the province with multi-unit housing. He is aware

that the NRCB has approved the CFO application, but sees this application as unrelated – the approval of

the CFO by the NRCB should not guarantee the approval of the application for residential and

institutional uses.

[113] A project with a density such as the one being proposed is normally located in an urban

community which is better equipped to provide the needed services (water, wastewater, garbage

collection) and which can levy taxes to fund those services. Nothing is preventing the 100 or more

residents from moving to Carmangay and taking advantage of the services and facilities which are already

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in place. He sees “fairness” and “equity” as being issues with this application; there is no ability to

construct additional dwellings on our property – that is not something the municipality will entertain.

[114] Water is a finite resource and is at risk. Farmland owned by the Bishops receives water from the

LNID. Mr. Bishop expressed concerns, based on recent trends and despite assurances, that there will be

water shortages in the future and crop producers like the Bishops will be the most impacted.

[115] There will be 130 people living at Summerland. Based on data from McGill University, each

person uses 329 litres of water per day – this means that Summerland will use 15.6 million litres per year.

Summerland will be drawing water from wells. However, based on Summerland’s LNID approval to take

irrigation water (LNID letter May 2016), irrigation water may be used for personal use as well. Unless

those approvals change, LNID water could presumably be used for both purposes, and agricultural water

supply could be at risk.

[116] There are traffic and noise concerns relating to Range Road (RR) 241which runs in front of the

family house. While the use of RR 243 to access Highway 23 is recommended, we have seen traffic and

noise increase on RR 241 with the current operations. The condition of that road is fine in Vulcan County,

but it is not in Lethbridge County. It is not clear whether there will be any travel restrictions placed on RR

241, and if so, if they are being adhered to/enforced. Dust control will be needed on the Lethbridge

County portion as well as in Vulcan County.

[117] The Bishops’ long term plan is to expand the farm. Summerland will likely want to expand its

farming operation as well, leading to an increased competition for land. The Bishop family is not aware of

any consultation efforts made by Summerland.

(i) Mr. Turner

[118] Mr. Turner is a grain farmer who owns land in the vicinity of the proposed development. He and

his family live on 36-12-24, which has been in the family since 1927. The Turner land closest to the

project is one-half mile away, while the family home is 1.75 miles to the south. The land is of good

quality and Mr. Turner plans to continue farming.

[119] The main concern is traffic safety and dust. The residence is on RR 241, which Summerland

traffic uses instead of RR 243, the appropriate route. Traffic will increase substantially if the project is

approved likely changing from 5 cars a day to the equivalent of a village. There are health issues in their

family which makes the dust issue even more important. Mr. Turner recommended that speed limit signs

be posted and roads in the vicinity be paved.

[120] Mr. Turner expressed his concern that colony residents do not participate in community activities

whether educational, sports, religious, or service oriented, and do not support local initiatives financially.

Support for these local organizations is the tradition of local farmers and is the fabric of the community.

[121] Consultation efforts for the project have been deficient; events that were organized took place

when local farmers were either seeding or harvesting.

(j) Mr. and Ms. Johnson

[122] Mr. and Ms. Johnson reside in a home on the quarter section immediately south of the proposed

development, and asked Mr. McFarland to submit their concerns on their behalf:

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 They are concerned about potential health problems associated with the odours and wind from the

CFO, for both the village members (many of whom are elderly) as well as any newcomers.

 They believe that approving the Colony will increase density, noise, and smell to a level that will

discourage newcomers from buying property, resulting in decreased property values and a

depressed local economy. This would be a shame as Carmangay has been thriving lately.

 The Colony will curtail enjoyment of their property, and a “village” erected close to their

property is not in keeping with their view of rural life. Anyone living next to an insular village

and full blown commercial feedlot would find this the antithesis of quiet, rural living.

 The LPRT should understand that John Hofer of the White Lake Colony who sits on the Hutterite

Land Committee spoke about the Committee’s history and supposed function advising that the

Committee was set up after talks with Peter Lougheed, who asked the colonies to always consult

with surrounding neighbours and communities, and to seek the community’s approval of a

colony’s location. The Hutterite Land Committee was supposed to enforce this but has not.

APPELLANT’S RESPONSE TO INTERESTED PARTIES EVIDENCE AND TESTIMONY

Mr. Hofer’s Response

[123] In response to Ms. Beunder’s argument related to the proposed development’s non-compliance

with ss. 12 and 13 of the Subdivision and Development Regulation Mr. Hofer indicated the following,

referring to Figure 2 in Ms. Beunder’s report :

 At the centre of the pink circle is an emergency storm water management catchment. The

catchment was farmed in 2021 and will be seeded with grass and topsoil once the property is

developed. It will not handle any wastewater, only freshwater.

 At the centre of the blue circle is the Colony’s fresh water supply for its animals. It is not for

human consumption or for irrigation. It will not handle any wastewater – only freshwater.

 At the centre of the yellow circle is the Colony’s septic field which will be underground in its

entirety. At the centre of the white circle is the livestock slurry tank. No part of the development

will be located within 300 m of the septic field or the slurry tank.

[124] In response to the issues raised by Ms. Beunder and by several area residents relating to domestic

water use, Mr. Hofer advised:

 The Colony entered into an agreement with the LNID (Jan. 2, 2019) which provides the Colony

with 44 acre-feet of water per year. The water is to be used for “Mixed Agricultural purposes.”

The water is not for irrigation; it is to be used for animal consumption related to the CFO.

 The water is not potable and is not for domestic (human) consumption. Once development

permission has been received the Colony intends to drill wells on the property for domestic

consumption and has submitted the required application to AEP.

Ms. Vizzutti’s Response

[125] Ms. Vizzutti did not agree with many of the points and opinions expressed in Ms. Buender’s

report (Ex 10AP). Ms. Vizzutti’s response to various concerns raised is summarized below.

Section 2.3 – Concern as to outstanding proper evaluations

[126] A traffic study was in fact completed, as per Ms. Erickson’s evidence; further, Biophysical

Impact and Historical Resources Impact Assessments were not required.

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Section 2.3 – Concern as to no IDP in Place

[127] The Village of Carmangay/Vulcan County IDP has recently been approved by Vulcan County,

but is still subject to approval by the Village. The draft IDP does not take in any of the subject lands.

Section 3.1 – Concern as to compliance with SSRP - unapproved concrete batch mixing plant

[128] The NRCB has approved the concrete batch site as shown by the September 28, 2018 and

October 19, 2018 correspondence.

Section 3.1 – concern as to compliance with SSRP - multi-unit dwelling and institutional uses on

agricultural land

[129] ‘Institutional Uses’ are not defined in the LUB, but likely require a public component because

they are coupled with ‘public uses’. There are no institutional uses associated with the site. The school is

for the exclusive use of the Colony to educate its children. Church services will be performed in

German, the Colony’s language. These are private dwellings and private edifices not intended for public

use. Even if they were considered institutional, they would still be discretionary uses in the LUB.

Section 3.1 – Concern as to compliance with SSRP - approval of higher density community incompatible

with the need to maintain large tracts of land for agriculture

[130] While s. 8.19 of the SSRP contemplates the protection of agricultural lands, it is not correct to

interpret its intent to prevent Hutterites from living, worshiping or educating their children communally in

a rural setting while practicing an agricultural lifestyle that has existed for over 100 years. The minimal

acreage used for the dwellings, school and church is more than offset by the increased output of the

Colony’s agricultural operation.

[131] Grain farming is not the only agricultural activity relied upon in the County’s MDP. The SSRP

and the MDP both promote the diversification of agriculture. That purpose is met by the Summerland’s

operations.

[132] Section 8.21 encourages planning tools to direct non-agricultural development to areas where it

will not constrain agricultural activities. This provision should not be interpreted as implying Hutterite

Colonies are non-agricultural. The result of such an interpretation would require Colony residents to live

in an urban community or force them to re-zone/redistrict, subdivide, and create individual titled lots or

develop a condominium plan in order to comply, thus destroying a way of life that has existed for 5

generations.

[133] This interpretation would destroy a century old traditional, cultural, and religious order where

property is held in common and belongs to every member of the Colony. Titled lots and condominium

plans have not been required of a Hutterite Colony anywhere in Alberta.

[134] The argument that a developer who must re-district to create a subdivision to sell individual lots

for a profit, is somehow disadvantaged because a Hutterite Colony can exist without either, is not a

plausible argument. The two functions are diametrically opposite in purpose and in use. One is to support

a communal agricultural entity and the other is to create saleable lots for development.

[135] Ms. Beunder’s report refers to s. 3.1 of the LUB which regulates the number of parcels allowed

out of a quarter section as two. If approved, the Colony will have two parcels – a consolidated parcel of

319 acres (more or less) and a parcel of 1 acre (more or less) to be used as a cemetery. The requirements

of the two-parcel rule have been met.

[136] Ms. Beunder’s report also states that, “By splitting the colony into a new ‘sister colony’ and not

subdividing, the colony is intensifying and densifying the land by avoiding the otherwise applicable

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density bylaw.” However, Silverwinds Colony was approved by Vulcan County MPC in August 2018

without any requirement to subdivide, nor any limitations on multi-unit dwellings. The land is districted

RG and is located near a resort development with 33 residences. This development was not considered a

“density bomb”.

Section 3.2 – Concern as to lack of circulation referral response from Lethbridge County

[137] Page 3 of the July 14, 2021 Request for Decision confirms Lethbridge County was notified and

“has no objections.”

Section 3.3 – Concern as to consistency with MDP objectives

[138] Ms. Beunder’s report states “the MDP speaks more to traditional farming practices

(heavily leaning towards grain production)”. However, Alberta Agriculture Statistics as of 2016 places

Vulcan County 4^thhighest in the province regarding cattle population with 191,944 cattle and calves.

Vulcan County has experienced a 50.2% increase in hog production numbers in the five years 2011-

2016 with 86,773 pigs on inventory making Vulcan County the 9^thfastest growing county regarding hog

production, with Hutterite Colonies leading the way. The organization “Egg Farmers of Alberta”

represents 160 egg operations with Hutterite Colonies leading the way. Vulcan County is an agricultural

diversity success story with growth in cattle, hog and egg production as well as cereal and oilseed

production providing stability and reliability in a world where supply chains are now at their most

vulnerable. Shortages in thousands of commodities are being realized every day. Food production is one

of our most important needs that demands protection and support.

Section 3.4 – Concern as to compliance with LUB – no setback waiver from NRCB for residential and

institutional uses

[139] Section 3(6)(b) of the Standards and Administration Regulation provides that if the owner and the

operator are the same person, they are not required to abide by the setback requirements.

[140] With respect to the concern that residential and industrial uses are contemplated or approved for

use on this site within the established minimum distance separation, the September 28, 2018

correspondence from the NRCB confirms the following:

 … The application to the County was primarily for the development of residences and

residence related supporting infrastructure, but included these three buildings as well.

On September 19, 2018, the Vulcan County municipal planning council denied the

municipal development permit application.

 I find that these proposed additional buildings are necessary for the construction and

operation of the permitted CFO facilities. Further given the context noted above, I

consider them to be ancillary structures under the Agricultural Operation Practices Act,

(AOPA) and the Part 2 Matters Regulation under AOPA. An ancillary structure is a

building or structure directly related to the purpose of growing, sustaining, finishing or

breeding livestock, but does not include residences, livestock seasonal feeding and

bedding sites, equestrian stables, auction marts, race tracks or exhibition ground.

 To the extent that the three proposed buildings are used for the purposes you set out in

your note, they relate directly to the construction and operation of approved facilities,

 As they are ancillary buildings, you do not need to apply for amendment to Approval

LA16046. Accordingly, under section 4.1 of the Part 2 Matters Regulation, these three

ancillary structures form part of the confined feeding operation and can be constructed.

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Section 3.4 – Concern as to LUB compliance – completeness of application

[141] The application was deemed complete by Ms. Erickson, Vulcan County Development Manager,

in a letter dated June 21, 2021 and the following documents were provided:

i.

ii.

Storm water management plan;

Historical Resources Review;

iii.

iv.

v.

Phase 1 Environmental Site Assessment;

Groundwater Impact Assessment;

Traffic Impact Assessment;

vi.

vii.

Erosion control Assessment; and

Site Plan and architectural controls.

[142] With respect to the location of the wastewater system and how it impacts the 300 metre

setback requirement - there are no “storage sites” as that term is defined in the Waste Regulation within

the setback distance.

[143] The Colony’s septic field is underground and is 650 m or more from the Church, school and

residences. It is also not a “storage site” as defined in the Waste Regulation, and was approved based on

the site plan.

Section 4.0 – Concern as to water licences and use of water

[144] The Colony holds a water licence from the LNID to divert up to 27 million gallons per year. The

Colony has drilled 6 producing wells on the site for domestic water use. Wells 1A and 1B will remain as

observation wells while the other four will be for domestic use. The wells are capable of producing 59-65

gallons per minute and the Colony holds a temporary permit allowing it to draw up to 11 million gallons

per year for domestic use from those wells as required by the Water Act.

Section 5.0 – Concern as to NRCB approval for residential development

[145] The NRCB was aware the Colony was attempting to construct residences, as illustrated in the

September 28, 2018 NRCB correspondence (See response to section 3.4 above).

[146] All food preparation and handling areas for the colony will be more than 300 meters from any

waste handling facility. (See the response to section 3.4 above). Even if the kitchen/dining area were

within 300 metres of the slurry tank, neither the kitchen nor the dining area are food establishments.

[147] The kitchen and dining area meet the threshold of section 2(2)(d) of the Food Regulation as “a

private dwelling where food is handled for consumption by the residents of the dwelling and their guests”.

They are part of the Colony’s private dwellings - not publicly accessible sites. They are for the private use

of the Colony and its families.

FINAL SUMMARY AND ARGUMENTS

Vulcan County

[148] Summerland Colony has made a number of development applications over several years. The

County is the DA; its role is to review, consider and assess the specific development application before it

at any given time, which was done in this case. Some of the previous Summerland applications were

refused; others were approved and overturned on appeal. In each case the County considered only the

application before it on its merits. In making its decisions, the County hears from and takes into

consideration the concerns expressed by adjacent landowners and other stakeholders.

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[149] In this case Summerland submitted an application on June 7, 2021 for specific uses – multi-unit

dwellings, a school, kindergarten and church (public or institutional uses), and a kitchen and kitchen prep

area which were considered to be accessory to the primary use. The lands in question are in the Rural

General (RG) land use district where multi-unit dwellings and public/institutional uses are discretionary

uses. In Vulcan County, the MPC is responsible for decisions on discretionary use applications.

[150] A Request for Decision (RFD) was prepared by DA staff providing the application details and

recommendations for MPC consideration. It did not include a lengthy history of previous applications.

The cemetery was not included in the RFD. The application was considered at the July 14, 2021 MPC

meeting; the meeting minutes emphasize that the MPC was only considering the current development

application. The MPC held a public meeting, heard from the Applicant (Summerland Colony), from Mr.

Smith and other persons opposed to the application, and then considered a motion to approve the

development subject to 14 conditions. The result was a 3-3 tie vote, and on August 1, 2021 a letter was

sent to the Applicant advising that the application was deemed refused. The County emphasizes the

history of past decisions and the NRCB approval were not before the MPC and did not come into play;

the MPC considered land use matters only.

[151] The County notes that recent amendments to the Act resulted in development appeals with a

Provincial dimension, such as an NRCB decision, being sent to the LPRT rather than to the local SDAB.

Nonetheless, this is still an appeal of a local development decision. The fact that there is a larger

provincial interest involved does not mean that the local interest has disappeared and does not need to be

considered. The County urges the LPRT to view its jurisdiction as one of addressing the local interest

against the backdrop of the larger Provincial interest.

Affected Persons

[152] The Affected Persons consist of a group of area landowners, farm families and Village residents,

as well as The Village of Carmangay. Representatives of the farming families and the Village made

submissions. In this case the Landowners/Village are the Respondents, and it is Summerland who is

trying to overturn a deemed refusal. The onus is on the Appellant and they have failed to discharge that

onus.

[153] This is the ninth time a Summerland development application has been heard; all previous eight

were denied, either by the MPC, the SDAB, or the Alberta Court of Appeal. The Tribunal heard

passionate submissions from the landowners and the Village and expert submissions from Ms. Beunder.

What is important is not the level of contributions to the food bank or the existing NRCB approvals; it is

the planning principles.

[154] This major proposed development does not comply with any of Vulcan County’s statutory and

land use planning documents, and there are technical planning considerations which weigh against the

granting of this appeal. The Appellant has presented irrelevant considerations - why colonies need to split,

food bank contributions, whether a private school is institutional. These are not at the crux of the matter,

and the Tribunal should ignore these largely irrelevant considerations and focus on the actual planning

issues which are straightforward. The appeal should be denied.

[155] In order for the appeal to succeed the proposed development must comply with the relevant

statutory planning documents. At the top of the list is the Act: s. 687(3) which states that the LPRT, in

granting an appeal, must determine that the development complies with the LUB.

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[156] LUB s. 34.3 states that in determining an appeal it must ensure compliance with any applicable

statutory plan and the land use bylaw. Many of the buildings that the Colony wants are discretionary

including the multi-unit housing (24 units), the church, the school, and the kindergarten. The kitchen and

kitchen prep are accessary. The MPC, using its discretion, denied approval for these buildings. This

proposed development does not conform to Subsections (a) to (f) of 34.3; in order for the LPRT to

exercise its discretion in favour of Summerland, the proposed development must comply with these

provisions.

[157] LUB s. 34.3 (a) refers to statutory plans. The relevant plans are the SSRP and the Vulcan County

MDP. The proposal does not comply with either plan because it violates, for example:

 Sections 8.19 to 8.22 of the SSRP by taking good farmland land out of production in this

primarily farming community.

 The MDP Objectives which aim to protect good quality agricultural land while allowing

subdivision and development for uses as specified in the LUB. That this is good agricultural land

was not challenged. Yet it has been graded and torn up for this major development. Schedule 5 s.

33.4 (a) states that, in the Rural General District, applicants are encouraged to select development

sites with poor quality land with the lowest productivity. That is not what is happening.

 The MDP also states that development opportunities are to be encouraged to expand the County’s

assessment base while limiting conflicts with existing uses. The landowners have made clear

there are conflicts with existing land uses. The Colony might be a good fit in some places in

Vulcan County, but not here.

 The Agricultural Section of the MDP states that, wherever possible, non-agricultural usage shall

not be located in areas of agricultural activity. It has been made clear that there will be various

and significant nonagricultural uses, like a small village occurring in an area almost entirely taken

up with agricultural activity. Finally, the MDP states the County should ensure policies in the

LUB protect agricultural land from non-agricultural development. That is what Vulcan County

has done.

[158] LUB s. 34.3 (b) refers to the purpose statement of the specific land use district. The purpose

statement of the RG District is to protect agricultural land while allowing nonagricultural developments

which complement the economy. This major development does not protect the agricultural land base and

does not complement the local economy; it will have, as witnesses have stated, a detrimental effect on the

surrounding area, in particular Carmangay, despite any short term construction benefits.

[159] The MDP encourages a consistent decision making process by the County’s various approval

authorities. Considering all of the previous denials by the MPC, SDAB and Court of Appeal, granting this

appeal would be the opposite of a consistent decision making process. Some of the landowners who

testified are fourth and fifth generation who know their neighborhood and what is best for it. Like the

MPC, they know this Colony does not work in this location and they have said so for the last 5 or 6 years.

[160] Regarding LUB s. 34.3 (c, d and e) the landowners have explained why this project is not

appropriate for this location, how it will negatively impact the surrounding area and the greater

community. It is not of a similar density; it is too close to the Village; and it will bring smells or

pathogens by virtue of the prevailing southwesterly winds. As such, it will affect the use and enjoyment

of their lands. The landowners spoke of reduced property values, an adverse impact on a rural way of life,

and the introduction of a cluster of population densities, a pop-up village, that some folks came to the area

to avoid.

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[161] Jatoi v. Willow Creek (2000 ABCA 83) (Willow Creek) confirmed that (a) the people of a

community may assert their interests in the nature and character of their community and how the

community should develop, and (b) the LPRT, in this case, is thus empowered to weigh the community’s

interest against that of the applicant and consider the landowners’ evidence on the potential impacts and

why the proposed development is not appropriate for this site.

[162] The mention of Summerland’s economic contributions and its efforts at consultation appear to be

clumsy public relations attempts to improve the optics, rather than relevant planning considerations. The

County would not let this material in; Ms. Beunder came to the same conclusion. The County, the SDAB

and the Court of Appeal all found that this development is not of a similar density or character to the

surrounding area and should not be approved. Two of those refusals involved the consideration of this

new septic system. The panel is encouraged to follow the same clear path.

[163] Regarding Hutterite Brethren v. Vulcan County 2017 ABCA 411 (Hutterite Brethren), the Court

of Appeal confirmed it is appropriate to consider the full build-out plan which includes the NRCB

approved facilities. This finding supports the concept that planning is contextual. The full picture must be

studied - adding density to the area further intensifies and densifies the use.

[164] LUB s. 34.3 (f) covers technical factors such as servicing. Ms. Beunder’s circle diagrams

illustrate the setbacks from various installations. The circles centered on the slurry tank and the septic

system stand out. These facilities will have deleterious and negative effects on adjacent land uses;

notably, the kitchen and food prep area, which are outside of the 300 m required setback for the

wastewater treatment plant mandated by the NRCB, but inside the 804 m MDS.

[165] LUB Schedule 4, s. 12.4 states that all components of a project should be on the same quarter –

this is not the case as the septic field and certain tanks are located on the quarter to the east.

[166] Summerland proceeded with its NRCB application after the residential side of the colony had

been refused, thus attempting to shoehorn multi-family dwellings into the Rural General District using a

back door approach. The Tribunal should not encourage this approach. The NRCB approved the CFO

knowing the dwelling units were contemplated, but had been refused.

[167] The LPRT should prefer Ms. Beunder’s evidence over Ms. Vizzutti’s, since Ms. Beunder is an

expert while Ms. Vizzutti is not; further, Ms. Vizzutti called herself a “Friend of the Hutterites” and

cherry picked from the hierarchy of plans. Ms. Vizzutti also addressed the SSRP only in response to Ms.

Beunder’s report, and tried to characterize the Colony as a typical family farm which is incorrect.

[168] Ms. Vizzutti also said Summerland is no different from other Hutterite colonies and that there are

others close to urban centres. The “urban centres” referred to are ghost towns or hamlets with a

population of 5 or 10 people. In contrast, Mr. Smith’s distance maps included only towns and villages.

[169] Institutional use is important, and LUB Schedule 2, ss. 11.12 and 11.13 contain the special

considerations the MPC has taken into account. The argument that the church and school are private and

should not be characterized as a public or institutional land use is flawed.

[170] There is no legal reason that would prevent the Appellant putting more homes at Clear Lake, or

elsewhere in Vulcan County, and continuing to commute to the CFO; many people commute much

further every day. In fact, they have been commuting from Clear Lake up to now and seem comfortable

doing so.

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[171] While some people may be needed onsite to operate the CFO – there is no need for 130 people.

Summerland took the risk to apply for the CFO without a development permit for the multi-unit housing

and the other buildings. Their attempt to persuade the Tribunal to approve the residences because the

(CFO) structures are already there should be resisted. The proposal is flawed, does not comply with the

statutory plans or with the technical considerations, and is against the wishes of the adjacent landowners.

The proposal might be compatible with other landowners in another place, but not here, and the Tribunal

should dismiss the appeal.

Appellant

[172] The reason for this appeal is that nine people have voiced opposition to the proposed

development. However, nobody has expressed a concern with the development, which consists of a

church, four houses, a kitchen, a school, a kindergarten, and a cemetery; rather, the concerns expressed

are not related to this development.

[173] One witness stated the Hutterian Brethren have a monopoly on farming operations. Several

witnesses noted there are three colonies close to Carmangay, and stated they did not want the Village to

be surrounded. Another witness blamed Hutterite colonies for their health issues. Several witnesses were

concerned about competition for land. Ms. Beunder, an expert witness, expressed a concern about

proliferation of Hutterite colonies and their CFO’s. The fact that witnesses provided this type of

testimony, demonstrates that one factor driving their opposition is ethnicity.

[174] Consultation was discussed. Summerland met with the respondents or their representatives three

times: in 2015 when Summerland attended a public hearing that “was not public for them;” a private

meeting with Ms. Nichols, and a 2021 consultation “scheduled by my office.” There is no legislative

requirement to consult before applying for a development permit. The reason for consultation is to

identify reasonable changes to appease the neighbours’ concerns – for example, moving the development

a foot or two, changing the colour, or to show the neighbours their expectations are unfounded. In 2018,

Ms. Nichols advised Summerland nothing could be done to make the project acceptable, and no

landowners attended the Consultation organized by Appellant.

[175] Another concern was the CFO on the site; most or all of the nine respondents brought up this

issue. However, the LPRT has no jurisdiction to consider the CFO approval, since s. 619 says the NRCB

approval takes precedence over other approvals under Part 17 of the Act. While some residents expressed

concern over the smell from the CFO, they conceded it would not originate with the dwellings, church

and school.

[176] With regards to property values several residents testified that Village property values have

increased since 2018 when the CFO became operational, and one opined that his property value would go

up if the subject permit is approved. None of the Village residents opposing the development knew the

CFO has been up and running with up to the approved 35,000 chickens at the facility “on their doorstep”.

[177] Willow Creek concerned approval of a liquor store for off-premises consumption and is

distinguishable, because the impacts of intoxication in an area are very different from the establishment of

a Hutterite colony.

[178] Regarding Ms. Beunder’s expert report and testimony, only the submissions relating to the SSRP

and MDP are pertinent. The rest are incorrect and irrelevant. In particular:

 There are no setbacks relevant to this development; the suggested setbacks are wrong.

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 Ms. Beunder’s opinion is that a multi-unit residence does not meet the definition of a residence

under the Food Regulation, that there needs to be a minimum distance separation for this use, and

that the proposal violates Food Regulation setbacks for waste handling facilities. This is not the

case.

 Ms. Beunder spoke to the required 300 m setback in the Subdivision and Development Regulation

and argued Summerland will violate it. Later, however, Ms. Beunder agreed that Summerland

complies. Further, the LPRT is not bound by the Subdivision and Development Regulation.

 Ms. Beunder cited Schedule 4, s. 12.4 of the LUB to support her position that the septic system

must be on the same parcel as the development. However, that provision relates to private sewage

systems, whereas what is proposed is a communal treatment system covered by s. 12.7. Section

12.7 gives the MPC wider scope, and in any case, Summerland has no objection to the County’s

recommended condition relating to consolidation of the two titles.

 The way Ms. Beunder characterizes, articulates and advocates for the setbacks discloses a lack of

independence as an expert witness and should affect the weight placed on her report with respect

to those issues.

 With respect to the sewage treatment facility, Ms. Beunder knew both that the 804 m MDS does

not apply in this situation, and that s. 3(6)(b) of the Standards and Administration Regulation

allows an exemption from the MDS provision when an CFO owner and a residence owner are the

same party.

[179] Ms. Beunder was not asked to do her own research; this limit on the scope of her assignment

should affect the weight the Tribunal places on her evidence, since it may have constrained her analysis of

LUB s. 34.3 which is central to this application.

[180] Regarding Mr. Westersund’s report and testimony, the intent was to present data relating to the

potential economic benefit of the proposed development that are not publicly available. Nonetheless, the

three experts did confirm the project’s economic benefits, and Ms. Beunder stated that in her opinion the

Colony will bring employment opportunities to the local area. Ms. Vizuitti elaborated further, and Mr.

Hofer testified that 95% of materials needed are to be purchased within a 50 km radius. None of the area

residents disputed this expectation.

[181] The other notable piece of Mr. Westersund’s report was the mapping of the distances between

other Hutterite colonies and urban centres. Ms. Vizzutti further analyzed the maps concluding that

Summerland’s location relative to other developments and settlements does not stand out, and that there

are other colonies located closer to communities than Summerland will be to Carmangay.

[182] Ms. Vizzutti’s reference to being a “Friend of the Hutterites” should not be seen as a lack of

independence. In this case a “friend” means someone who believes that “Hutterites are Fine” rather than

implying that there is a personal relationship with the Hutterite community. No issues were raised with

Ms. Vizzutti’s credibility, and her testimony should not be discounted because of this statement.

[183] Section 687(3) of the Act says the LPRT:

 Must comply with any statutory plans. (The SSRP comes first in the hierarchy, then the IDP, and

then the MDP.)

 Must comply with the LUB.

 Must have regard to, but is not bound by the Regulation.

[184] Regarding the SSRP, s. 488.02 of the Act states that the Tribunal must act in accordance with any

ALSA regional plan. The SSRP sets out binding objectives and strategies under the heading Agriculture,

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in particular Strategies 1.1, 1.3 and 1.5. And, under the Efficient Use of Land heading the objective is the

amount of land that is required for development of the built environment is minimized over time.

[185] The LPRT’s attention was drawn to a very recent MD of Willow Creek SDAB decision. Under

appeal was a proposed new Hutterite colony with buildings very similar to those requested by

Summerland. The SDAB approved the proposal with regards to the Willow Creek appeal the Appellant

noted that:

 Ms. Beunder also provided an expert report and testimony on behalf of local landowners opposed

to the project and her report referred to non-compliance with the SSRP.

 The SDAB referenced only Ms. Beunder’s suggestions that the use was not allowed, was out of

character and had density concerns.

 There were over 20 homes within a two mile radius of the proposed location.

 The SDAB reasons were clear that the proposal did not conflict with the SSRP objectives the

same objectives Ms. Beunder put forward in the Summerland case. The decision also concluded

that the proposal supported the “use land efficiently” objective.

[186] Ms. Beunder’s report concludes this development is a CFO “for all intents and purposes.” She

also notes the proposed development is here to support a CFO. This statement implies this development

falls within the agricultural lifestyle which is promoted and maintained by the CFO, and is consistent with

the Confined Feeding Operation section of the MDP (P. 14).

[187] A number of MDP provisions support the proposed development proposal, including the

Introduction, Philosophy, Mission, and Objectives, the Agriculture section’s Objectives, and the

Economy section’s Objectives.

[188] With respect to the LUB, the Appellant stressed that the LPRT’s obligation, with limited

exceptions, is to comply with Act s. 687(3)(a.3), and again drew attention to s. 34.3 of the LUB,

emphasizing that:

 Subsection (b) refers to the purpose statement of the applicable land use district; the Summerland

application is more than consistent with it - colonies support agriculture.

 Subsection (c) relates to the appropriateness of the location and parcel for the proposed

development. Meeting this requirement is no longer an issue. This application is different from

the previous applications – a new land use bylaw is in effect. No longer does Summerland have to

prove that the proposal is similar in density or character to the surrounding area. County

officials supported the site. The closest residence is 2.5 km away and the village is 6.2 km away.

The site is surrounded by bare land. There is no doubt about the appropriateness of the site for the

Colony.

 Subsection (d) relates to compatibility with adjacent land uses and the impact on the greater

community. The nine area residents testified that there would be no change in the way they use

their properties. There is nothing incompatible. Further, evidence has shown the positive

economic impact the development will have on the local economy. The 114 letters of support also

speak to the long term benefits that the Colony will bring.

 Subsection (f) relates to access and servicing requirements. The traffic study conducted by the

County is the only one in evidence and it concluded that there is more than enough capacity to

handle the colony; some residents said there will be no traffic impact. Traffic may even decrease

because Colony members are no longer commuting multiple times a day. At great cost the open

sewage septic system has been replaced with a closed odorless one.

 The conclusion is that the requirements of LUB 34.3 have been met.

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[189] The Appellant referred to s. 687(3) (d) of the Act, which indicates that, under certain

circumstances, the Tribunal’s duty to consider whether a project (a) would unduly interfere with the

amenities of the neighbourhood or (b) materially interfere with or affect the use, enjoyment, or value of

neighbouring parcels of land. The presence of the word value indicates that the Tribunal is required to

consider “values and economics” and that Ms. Beunder is wrong in saying that economics do not apply.

[190] In summary, this application is about four multi-unit housing buildings, a church, a school, a

kindergarten. It occupies two to three acres on 150 to 320 acres. It is a place to live for women, for

children, for farmers. The development is necessary to maintain the CFO on the site. There has not been a

single reason presented that would demonstrate a lack of merit for the project or any reason to reject it.

The Appellants have a right to live their chosen lifestyle in Canada, in Alberta.

FINDINGS

1. The proposed development is consistent with the relevant objectives and policies of the SSRP;

there are no SSRP provisions which support a refusal of the development application.

2. The proposed development is consistent with the relevant objectives and policies of the Vulcan

County MDP. There are no MDP provisions which support a refusal of the application.

3. The proposed development does not contravene any policies contained in the Vulcan

County/Lethbridge County IDP.

4. The proposed development complies with the relevant provisions of the Vulcan County LUB.

There are no contraventions of any LUB provisions which merit consideration of a refusal of the

proposed development.

5. There is no evidence that any component of the proposed project contravenes any applicable

Provincial legislation.

6. Similarity in density or character to the existing surrounding land uses in a community or in an

area is not, in itself, an adequate planning reason on which to base a development application

decision; the contents of regional plans, statutory plans and the land use bylaw provide the

required direction and details with regard to desired land uses, housing types and population

characteristics.

7. It is the LPRT’s view that the proposed development, when completed, will not unduly interfere

with the amenities of the neighbourhood or materially interfere with or affect the use, enjoyment

or value of neighbouring parcels of land. The LPRT concluded that almost every concern with

and potential impact of the proposed development brought forward by area residents and the

Village of Carmangay was directly related to the CFO that was previously approved by the

NRCB.

DECISION

[191] The appeal is allowed and the Development Permit is issued subject to the following conditions:

1. That the applicant must participate in Vulcan County’s Dust Abatement Program, to the

satisfaction of Vulcan County, or as Directed by the Director of Operations.

2. All outstanding taxes owed to Vulcan County shall be paid prior to the commencement of this

development.

3. That the minimum/maximum requirements for all setbacks as established in Land Use Bylaw

2020-028 are met.

4. That prior to commencement of construction, the applicant must provide evidence of an adequate

potable water supply.

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5. Any permits or approvals required for sanitary sewage and water services in accordance with

Alberta Safety Codes Act, Municipal Affairs, and/or Alberta Environment & Parks shall be

submitted to the County. (where applicable)

6. No buildings shall be used for commercial purposes and the sale of materials produced is

prohibited unless a separate development permit for commercial operations is obtained.

7. This is not a building permit, all Permits as required under the Safety Codes Act and its

regulations shall be obtained and a copy of the Building Permit and any other required Safety

Code Act approvals or permits shall be submitted to the County.

8. The applicant is solely responsible to obtain and comply with any other required Municipal,

Provincial or Federal government permits, approvals, or licenses.

9. All outdoor building and site lighting shall be suitably shielded and shall be downward cast.

10. This Development Permit is valid for 24 months from the date of issue unless the Municipal

Planning Commission extends the term of the Development Permit in accordance with the Land

Use Bylaw.

11. Construction shall be limited to the hours of 6:00 a.m. to 8:00 p.m., 6 days per week; with no

construction on Sundays and statutory holidays including New Year's Day, Alberta Family Day,

Good Friday, Victoria Day, Canada Day, Labour Day, Remembrance Day, and Christmas Day.

12. That the applicant consolidates the three separate parcels that are included within the

development.

13. That the applicant work with the Director of Protective Services on a fire suppression plan.

REASONS

ISSUE 1: Is the proposed development consistent with the relevant provisions of the SSRP, the

MDP, and the Vulcan County/Lethbridge County Intermunicipal Development Plan (IDP)?

Consistency with the SSRP

[192] The SSRP is a regional plan enacted pursuant to the Alberta Land Stewardship Act; it covers an

area of 83,764 km²(about 12.6% of the total area of Alberta), which includes 75 municipalities, two

Improvement Districts and seven First Nations. The SSRP is not a statutory plan pursuant to the Act. Its

implementation depends on the efforts of numerous authorities, with municipalities playing a major role.

[193] The Act addresses the relationship between an ALSA regional plan, municipal plans, bylaws and

planning decisions

618.3(1) Anything done by any of the following under a provision in this Part or a

regulation under this Part must be done in accordance with any applicable ALSA

regional plan:

(a) a municipality;

(b) a council;

(c) a municipal planning commission;

(d) a subdivision authority;

(e) a development authority;

(f) a subdivision and development appeal board;

(g) the Land and Property Rights Tribunal;

(h) an entity to which authority is delegated under section 625(4).

(2) If there is a conflict or an inconsistency between anything that is done under a

provision of this Part or a regulation under this Part and an applicable ALSA regional

plan, the ALSA regional plan prevails to the extent of the conflict or the inconsistency.

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[194] Despite s. 618.3 of the Act, the LPRT notes the SSRP states only the Regulatory details are

binding (pp 164) and that certain sections are non-binding:

Non-binding parts of the regional plan

3 For further certainty, and subject to any other express provisions of the Regulatory

Details, the provisions of the following portions of this regional plan are not binding:

(a) The SSRP Introduction,

(b) The SSRP Strategic Plan, and

(c) The SSRP Implementation Plan.

[195] The parties focused on the SSRP’s agriculture-related Objectives and Strategies, which were seen

as central to the subject application, and include the following

Agriculture

Objective: The region’s agricultural industry is maintained and diversified.

Strategy 1.1: Maintain an agricultural land base by reducing the fragmentation and

conversion of agricultural land.

[196] The SSRP also lists the following Agriculture-related strategies for municipalities:

Municipalities are expected to:

8.19 Identify areas where agricultural activities, including extensive and intensive

agricultural and associated activities, should be the primary land use in the region.

8.20 Limit the fragmentation of agricultural lands and their premature conversion to

other, non-agricultural uses, especially within areas where agriculture has been

identified as a primary land use in the region. Municipal planning, policies and tools

that promote the efficient use of land should be used where appropriate to support

this strategy.

8.21 Employ appropriate planning tools to direct non-agricultural subdivision and

development to areas where such development will not constrain agricultural

activities, or to areas of lower-quality agricultural lands.

8.22 Minimize conflicts between intensive agricultural operations and incompatible

land uses by using appropriate planning tools, setback distances and other mitigating

measures. Maintaining an agricultural land base recognizes the value of agricultural

land for sustainable growth and diversification of the agricultural industry as well as

providing an opportunity for expansion of agricultural production and value-added

agribusinesses in the region

[197] The County Planning Department advised that, during its review, it had found no provisions in

the SSRP related to the application.

[198] The Landowners, the Village and their expert argued that the proposed project, with its 130

residents and large CFO, is not consistent with the objective mandating the retention of agriculture in

large arable tracts and an approval would result in the loss of farmland in a primarily agricultural

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community. More specifically the use of the land for residential and institutional purposes, the presence

of 130 persons, and the CFO facilities all combined to suggest conflicts with Strategies 8.21 and 8.22 and

did not align with the overall direction of the SSRP.

[199] In response, the Appellant and their expert argued the development proposal is consistent with the

SSRP, stressing that Hutterite colonies are agricultural, and the amount of land planned for residential and

institutional purposes is a small proportion of the three quarter sections that comprise the subject site.

Further, the minimal acreage used for the Colony is more than offset by the increased agricultural output

of the Colony’s agricultural operation. The SSRP promotes diversification of agriculture; the proposed

development will support the operation of the CFO, and as such aligns with the SSRP’s objectives.

[200] The LPRT finds there is no conflict between the proposed development and the SSRP’s

objectives and strategies, and that the proposal aligns with intent of the SSRP.

[201] While the application is for 24 dwelling units in four buildings and several institutional uses,

these are all within a relatively small footprint. The units are of modest size and the entire complex will

take only a small amount of land out of production. In addition, based on the information submitted, each

dwelling unit will house an average of 3.3 persons. The Vulcan County average is 2.6 persons per

dwelling unit (Census Canada 2016), making the proposed development an efficient use of residential

land.

[202] The LPRT gave no weight to the suggestion that the proposed residential and institutional uses,

when added to the CFO activities, constitute a type of fragmentation which works against the SSRP’s

agricultural objectives. The proposed communal arrangement is not contrary to the intent of the SSRP to

maintain and diversify the agricultural industry. A substantial part of NW 12 will still be available for the

garden while the remainder will be used for CFO related purposes, in keeping with SSRP objectives.

Further, the immediate property consists of three quarter sections, and Summerland has extensive

holdings in the surrounding region; all of this land will continue to be used for agriculture purposes,

consistent with the SSRP Objectives.

[203] The Tribunal notes that the implementation of Strategies 8.19 to 8.22 is specifically directed at

the region’s municipalities. Vulcan County has made a comprehensive effort to reflect the intent of the

SSRP Agriculture Objectives in its MDP and LUB. The matter of compliance with the SSRP’s broad

direction is therefore also addressed under the MDP and LUB headings, considered below.

Municipal Development Plan (MDP)

[204] Each Alberta municipality must adopt an MDP, a long range plan for the entire municipality.

Vulcan County describes its MDP as

a long range statutory planning document providing elected officials, administration,

ratepayers and developers with a framework of policies for making decisions regarding

future growth and development opportunities. The policies of the municipal development

plan shape the growth and development of the municipality.

[205] Agriculture is the primary component of the MDP; Page 1 of the MDP Bylaw states:

Council wishes to promote the agriculture industry as the primary land use within the

County. Council recognizes the ability to diversify is a necessity to many agricultural

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producers, many of who still operate under the auspices of the family farm and

incorporates a degree of flexibility into its planning document for that reason.

[206] There are policy objectives in both the Plan’s Introduction and in the Agriculture Section. The

parties focused on the following Agriculture Objectives and Policies:

MDP Objectives:

 To protect good quality agricultural land while allowing for subdivision and

development to occur for a variety of uses as specific in the Land Use Bylaw.

 To encourage development opportunities … to expand the County’s assessment

base while limiting conflicts with existing land uses.

Agriculture - Specific Objectives:

 The County recognizes agriculture as the priority land use in rural areas

 Agricultural diversification shall be supported and promoted.

 Wherever possible non-agriculture uses shall not be located in areas of

agricultural activity.

 Wherever appropriate non-agricultural land uses should be clustered or grouped

to minimize conflicts with agricultural operations.

Agriculture Policies:

1.1

The County shall support the preservation of agricultural land and shall

promote diversification of the agricultural sector by supporting many types of

agricultural operations.

1.2

agricultural land from non-agricultural development.

1.3 Better utilizing land and promoting more compact development are two

The County shall ensure that policies in the Land Use Bylaw protect

methods that can limit land conversion. The County shall ensure that the

application of these methods are utilized in the decision making process.

[207] The Appellant argued the Summerland development application meets the purpose and intent of

the MDP, and is consistent with the Plan’s Philosophy, Mission and Objectives, which focus on the

importance of agriculture, agricultural diversification, and the family. The Hutterian Brethren’s long

standing presence in agriculture has been one of protecting agricultural land and supporting the concept of

the family farm, albeit one which allows for the tradition of communal living. The Appellant emphasized

there are 12 other Hutterite colonies in Vulcan County; the proposed development, with multi-unit

dwellings and institutional uses, is almost identical. There are no MDP policies which would inhibit

approval of the proposed development.

[208] The Landowners argued the proposed development does not align with the MDP’s agricultural

policies. In particular, Ms. Beunder argued:

 That since the word “colony” does not appear in the MDP, the type of density that is proposed is

only permitted in a hamlet or rural subdivision;

 That the County’s overall agricultural planning objective is to support the continuation of grain

farming and allow for the diversification of agriculture – as indicated in Policies 1.1 and 1.3;

 That a CFO is not what the County envisions as diversification;

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 That while the proposed development is compact, the number of residents, the multi-unit

housing, the institutional uses and the intensity of development are not what the MDP envisions

in agricultural areas.

[209] The LPRT reviewed the MDP’s Agriculture Objectives and Policies in relation to the proposed

development, and the perspectives presented by the Appellants and the Landowners group. The Tribunal

finds there is no conflict between the proposed development and the MDP intent, objectives and strategies

and that the proposal aligns with the provisions of the MDP.

[210] When viewed in its entirety, the development contributes to only a minimal loss of agricultural

land. All farmsteads take some land out of production; this development will accommodate 24 families on

a small amount of land – a compact development. Policy 1.3 recognizes compact development as a

method of limiting land conversion.

[211] The MDP states grain production is the backbone of the County’s agriculture, but it does not state

or imply this is to the exclusion of all other agricultural activities. Diversification is encouraged. Further,

the MDP section addressing Confined Feeding Operations in the MDP (p.14) states that the preservation

of the agricultural lifestyle is promoted and maintained through these (CFO) operations. In any case,

whether or not a CFO qualifies as diversification, the NRCB has approved it, and the NRCB approval

prevails over other land use planning instruments and decisions.

[212] The LPRT does not interpret the MDP’s agriculture objectives and policies as supporting refusal

of this development application. Rather, it finds the MDP’s agricultural land preservation policies are

intended to address non-agricultural uses such as urban expansion or country residential development on

good agricultural land.

Intermunicipal Development Plans (IDP)

Lethbridge County

[213] Each Alberta municipality, in cooperation with its adjacent municipalities, is required to adopt an

IDP. This type of statutory plan focuses on land use and development in areas along the boundary

between adjacent municipalities.

[214] The subject site is close to Lethbridge County and within the boundaries of the Vulcan

County/Lethbridge County IDP. The plan covers an area one mile on either side of the boundary.

However, no evidence was introduced relating to any of its policies. The Summerland application was

circulated to Lethbridge County, which advised that there were no objections or concerns. The LPRT

concludes this IDP has no significant bearing on the subject appeal.

Village

[215] A Village/Vulcan County IDP is currently in preparation, and several Landowners indicated the

proposed development would be prohibited by the upcoming IDP, which will provide a buffer for

Carmangay.

[216] The LPRT notes the IDP boundaries extend up to two miles beyond the Village boundary and do

not include the subject quarter. Further, this IDP is still in draft form (March 2021) and has not yet been

adopted. Given these considerations, the LPRT finds the proposed Carmangay/Vulcan County IDP has no

bearing on the subject appeal.

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Land Use Bylaw (LUB)

[217] Each Alberta municipality must adopt an LUB which regulates the use and development of

parcels of land. Typically, a number of land use districts are established; each district has a purpose

statement and a list of permitted and discretionary uses. Development standards and regulations are

established for specific uses or relate to development in general.

[218] Section 34 Discretionary Use Applications of the Vulcan County LUB lists six requirements

under s. 34.3 labelled (a) to (f) that the Development Authority must take into account when it decides a

discretionary use application. While this provision may not bind the LPRT owing to the guidance in s.

680 of the Act, the requirements of s. 34.3 resemble a standard planning analysis often used in Alberta

planning decision-making and are consistent with s. 680. The parties used s. 34.3 as a framework to

submit substantial evidence and perspective, and the Tribunal considered all of the information and

argument submitted.

RG District Purpose Statement

[219] The subject parcel is within the Rural General (RG) land use district. The purpose of the district is

To protect the agricultural land base of the municipality while allowing non-agricultural

developments which complement the area’s economy.

[220] Again, the issue highlighted by this purpose statement is whether the proposed development, with

its 130 residents, multi-unit housing and institutional uses, conflicts with the County’s duty to protect of

agricultural land objectives.

[221] The LPRT concludes the proposed development is the residential component of a large

agricultural operation; the residents will be farmers, and the development utilizes a relatively small

amount of land. Accordingly, the development is consistent with the RG purpose statement.

Discretionary Uses

[222] There is no dispute the proposed uses (multi-unit housing, church, school, kindergarten and

cemetery) are discretionary in the RG District. The kitchen and kitchen prep are ancillary uses. However,

the Landowners’ expert suggested the proposed development does not meet several of the LUB’s

“Suitability of Sites” regulations and therefore should not be approved.

(a) Minimum Distance Separation (MDS)

[223] LUB s. 19.1 (k) states a permit

may be refused if the proposal is situated closer to a confined feeding operation than the

minimum distance separation (MDS) recommended by the NRCB.

[224] The MDS is an NRCB restriction on where new CFO’s may be located relative to existing

residences. The NRCB advised that the MDS is not intended to restrict where new residences may be

constructed relative to existing CFO’s. The NRCB calculated an 804 m MDS for the Summerland CFO.

[225] Ms. Beunder argued the proposed residences and institutional uses are within the 804 m MDS and

therefore are subject to the restriction, noting that it also applies to the residence on SW 12. Ms. Beunder

supports her argument by stating that the NRCB did not recognize the residential and institutional uses in

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its decision and no waivers allowing residences within the 804 m zone were issued. Ms. Vizzutti agreed

the residential and institutional uses are within in the 804 m MDS and provided evidence that the MDS

does not apply if the owner waives the requirement and/or also owns the CFO; in addition, she argued the

NRCB was aware of the proposed residential uses when it issued the approval.

[226] The LPRT finds that the MDS is an NRCB standard used for a specific purpose in its application

process and is not intended to restrict where new residences may be constructed relative to existing CFOs.

However, the County has inserted the MDS into its LUB for consideration in development applications in

the vicinity of CFOs. The County made no reference to the MDS in the RFD report. The Appellant is

aware that the proposed residences and institutional uses are within the MDS, and is willing to accept this

circumstance. The Tribunal finds the location of the residential and institutional uses within the MDS

does not merit refusal of the proposed development.

(b) Unsuitable Site

[227] LUB s. 19.1 states a permit may be refused if the proposed site is poorly located. Ms. Beunder

argued the subject site may have a high water table, may be prone to flooding or subsidence, may not

have an adequate water supply or may not have an adequate means of stormwater disposal. The LPRT

finds no substantive evidence was provided with regard to these matters, and the submission was purely

speculative. In addition, the County RFD did not address matters relating to the water table, flooding or

subsidence and concluded the proposed water supply met requirements.

(c) The Number of Dwelling Units

[228] LUB s. 20.1 states that “no more than one dwelling unit on a parcel is permitted unless authorized

… and only where allowed in the land use district” in question. Ms. Beunder argued there is no such

authorization related to the Summerland application.

[229] The LPRT finds the RG District does not address the number of dwelling units on a parcel

directly; it does, however, allow multi-unit dwellings and duplexes as discretionary uses. This provision

appears to be intended to prevent construction of second dwelling units on a parcel, whether detached

homes, manufactured homes, or basement suites without a development permit. As such, the LPRT did

not accept Ms. Beunder’s position or argument in this respect.

(d) Land Use Compatibility and Impact

[230] The Tribunal heard substantial evidence and argument in relation to LUB 34.3(d), which states

that, for a discretionary use, “the Development Authority must take into account the land use

compatibility and impact of the proposed development with respect to adjacent land uses and the greater

community”.

[231] Given this provision, the Appellant provided details of Summerland’s expected direct and indirect

contributions to the Carmangay area; in response, the Landowners group argued matters such as local

purchase arrangements and community contributions are irrelevant to a planning application.

[232] The Tribunal was not persuaded by the evidence provided by Mr. Hofer, Mr. Westersund and Ms.

Vizutti on the subject of Summerland’s contributions to the community. The Tribunal finds the word

“impact” is not intended to open the door to consider matters such as community contributions or

numbers of jobs created - for example, in the evaluation of a discretionary use application. Instead, the

provision should be read in a land use planning context; i.e., it is the “land use impact” on adjacent land

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uses and the greater community that needs to be determined. Otherwise, the MPC would be faced with the

question - should an applicant who has nothing to offer in terms of economic impact or community

contributions be viewed in a less than favourable light? In reaching this conclusion, the LPRT does not

wish to imply such matters are unimportant in a planning context; however, it is more appropriate to

consider them when overall desired land use patterns are being developed during MDP policy

formulation. The land use impacts on the surrounding area are discussed below in relation to the concerns

raised by the landowners and the Village of Carmangay.

Subdivision and Development Regulation

[233] The Regulation provides additional planning criteria which bind a Development Authority. The

LPRT, while not bound, considers each case on its merits to determine the applicability of the criteria.

Sections 12(3) and 12(4)(b) of the Regulation are relevant to the subject application:

12(3) … a development authority shall not issue a development permit for a school,

hospital, food establishment or residence within 300 metres of the working area of an

operating wastewater treatment plant nor may a school, hospital, food establishment or

residence be constructed if the building site is within 300 metres of the working area of

an operating wastewater treatment plant.

…

13(3) … a development authority shall not issue a development permit for a school,

hospital, food establishment or residence, nor may a school, hospital, food establishment

or residence be constructed if the building site …

(d) is within 300 metres of the disposal area of an operating storage site.

[234] Ms. Beunder submitted a series of diagrams plotting the 300 m radius from specific facilities on

the site plan. She focused on the livestock slurry pit and the septic field, arguing the proposed dwelling

units, school, church and kitchen/kitchen prep are within 300 m of these facilities.

[235] Mr. Hofer advised that no part of the development will be located within 300 m of the septic field

or the slurry tank; further, he said the septic field is underground, and the possibility of installing a lid on

the slurry tank is being pursued. Ms. Vizutti stated the school, church, kitchen and food prep, and

residences are all 650 m or more from the septic field and the slurry tank, and that the septic system was

approved based on the detailed site plan.

[236] Based on the evidence provided, the Tribunal concludes the location of the residences, school,

church, kitchen and kitchen prep are outside of the 300 m limit and comply with the Regulation. The

LPRT did not accept Ms. Vizutti’s argument that the school is not “public” and that the kitchen is not a

food preparation area pursuant to the Food Regulation.

Landowner’s Concerns/Submissions

[237] Ten Area Landowners testified about the expected impact on themselves, their families, their

farms, and their community and explained their continued opposition to the Summerland project at its

proposed location.

[238] The locations of their residences and farmland vary. Ms. Nichols, Mr. Hovde, and Mr. Fraser live

and own property in Carmangay. The family farmsteads/farmland of Mr. Bishop and Mr. Turner are to

the south within 2.5 miles of the proposed development. Mr. and Ms. Johnson live on SW12 immediately

adjacent to the Summerland site. The Smith farmland, including the home quarter is, for the most part

between Carmangay and the subject quarter. Mr. B. McFarland’s farm and residence are east of the

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Village. Mr. T. McFarland and Ms. Paulson own farmland south of the Summerland site; Mr. McFarland

lives in Carmangay and Ms. Paulson in Calgary.

[239] Each Landowner requested the Tribunal to uphold the County’s refusal. Participating in the

community planning process is encouraged by Alberta planning legislation; however, it can be a stressful

and difficult activity when one’s community is facing change. The Tribunal finds each individual

landowner’s testimony exhibited a genuine care for their community and its future, and recognizes that

the spotlight of an appeal hearing presents a challenging situation.

[240] The Landowners presented their concerns in a series of overlapping theme areas:

(a)

Odour

[241] Numerous landowners, regardless of the location of their residence or farmland, expressed

concerns about potential odour, air quality and health impacts. Opinions that winds are predominantly

from the southwest were supported by data from the weather station at the Village of Barons and from

local knowledge. This led witnesses to conclude Carmangay and surrounding farmsteads will experience

increased sewage and/or manure odours and related impacts as a result of being downwind from the

proposed development.

[242] Opinions were voiced that the new sewage facility has not been tested or proven, will further add

to the impact, and will make outdoor activities, whether farming or family events, very unpleasant if not

impossible.

[243] In response to these concerns, the Appellant advised that stage one of the CFO (chicken barns)

has been operating since 2018, and no complaints had been received. Several witnesses were not aware

the CFO was already in operation. Neither Ms. Beunder nor Ms. Vizutti in their reports or testimony

provided any substantive information with respect to odour generation or impact.

[244] The LPRT finds the Landowners’ odour-related concerns are primarily based on their experience

with other CFO facilities and/or Hutterite colonies, and an expectation that the development of the CFO

and the residential components of Summerland Colony will also result in similar problems, especially

given the prevailing winds. The LPRT does not discount the Landowners’ understanding of local wind

patterns; however, the CFO has already been reviewed and approved by the NRCB and indeed has been

in operation. The Tribunal accepts the Appellant’s evidence that the new underground sewage treatment

system, which will serve the human side of the colony, will be odourless and represents a substantial

improvement over standard rural sewage disposal systems. The installation has been approved by Alberta

Municipal Affairs (Safety Codes) and has been installed in a number of Alberta communities where

servicing is difficult. Minimal if any impact is expected, especially in the Village, which is six km from

the development site.

(b)

Water Supply

[245] Several landowners expressed concern that the proposed development’s water needs, in addition

to the CFO’s, would be substantial; and if the LNID is not able to meet the Colony’s demands due to

unforeseen events such as drought, local farming needs may not be met. It was also suggested the colony

may draw on LNID water for personal use rather than solely for agricultural purposes if the wells are not

sufficient.

[246] The LPRT heard the residents’ concerns over the long term security of the agricultural water

supply; however, it gave little weight to the anecdotal evidence as it relates to the development permit

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under appeal. The concerns are speculative; there is no specific evidence that the development of the

residential and institutional uses might jeopardize supply. Water from the LNID is not intended or

permitted to be used for human use. Water for human use will be supplied by wells on the subject land;

provincial approval is required. The County did not address any related deficiencies or concerns in the

RFD report.

(c)

Access and Traffic

[247] Landowners living and farming to the south of the proposed development expressed concern with

the current amount of traffic using Range Road 241, the road in front of their properties, expecting that

traffic volumes will increase and exacerbate noise and dust problems. The suggestion was made that

Colony vehicles are not using RR 231 as had been discussed with the County, and that any dust

agreement should include both Range Roads 231 and 241.

[248] Some of the Landowners who raised concerns live and/or farm in Lethbridge County. These

residents emphasized that while noise and dust impacts continue into that County, there are no travel

restrictions in place, road conditions are not as good as in Vulcan County, and the dust abatement

agreement will not cover Lethbridge County.

[249] A 2016 traffic impact analysis prepared by County staff for a previous Summerland application

on the same site was provided to the MPC and subsequently to the LPRT on the current application. The

study indicated that access would be off Range Road 241 with most traffic originating via Twp. Road

132. No immediate road improvement needs were identified and no additional information or

recommendations were made by County staff with respect to the current application, except that the

possibility of a dust abatement agreement was identified.

[250] Mr. Smith and Mr. B. McFarland advised that Twp. Road 132 needs widening and upgrading,

with Mr. McFarland stating that increased commercial traffic and large equipment will contribute to the

condition worsening. Neither Ms. Vizutti nor Ms. Beunder commented in any detail about access or

traffic concerns or deficiencies. Based on her site visit, Ms. Vizutti advised there are no residences

fronting on Twp. Rd. 132 between the subject site and Highway 23, that the approach and access is

visible for 1.5 km along Highway 23, and that Twp. Rd. 132 meets County standards for passenger,

trucking and agricultural uses. No evidence or opinion was presented relating to Range Roads 231 or 241.

[251] Based on the evidence presented, the Tribunal concludes the access provisions for the proposed

development are adequate. A dust abatement agreement is a condition of approval.

(d)

Land Values

[252] Neither Ms. Beunder nor Ms.Vizutti provided evidence or commented on the potential impact of

the Summerland project on land values. However, most Landowners stated their property values would

decline if the Summerland project moves forward. This opinion was based on the belief that the presence

a relatively large colony with 24 families and institutional uses within 6 km of the village and closer to a

number of farmsteads would make their land/property less desirable as a place to live due to odour,

possible health implications, and/or the increased population. It was also suggested families will move

away from Carmangay and properties will be difficult to sell or rent, contributing further to declining

property values. This would be a turn around, since according to the current and the past Mayors, new

families have been moving in over the last several years, the Village is growing, and assessments are up.

[253] Other landowners were concerned property values could increase as demand for farmland would

increase as a result of the establishment of the Hutterite Colony.

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[254] The Tribunal notes there are 12 Hutterite colonies in Vulcan County. Based on Mr. Smith’s

evidence, a similar number is in each of the surrounding counties. There is no evidence that towns or

villages in those areas, regardless of their separation distances, suffered a decline in property values or

population levels following the establishment of Hutterite colonies.

[255] The Tribunal finds the property value concerns voiced by the Landowners relate to the potential

impacts of the CFO and not to the residential and institutional uses. Again, the LPRT put substantial

weight on the evidence related to the new underground odourless sewage system and has concluded there

is no credible evidence to support the view that construction of the proposed residential and institutional

buildings will impact property values in the Village or surrounding area.

(e)

Health Impacts

[256] Several Landowners raised a specific concern that the proposed development would impact their

own health and that of nearby residents. Letters or comments from personal physicians were provided in

the evidence package.

[257] In addition, Mr. B. McFarland suggested, without any supporting evidence, that the Public Health

Act requires a school to be located at least 1,500 feet from CFO barns, and that this provision would

apply because the Colony schools in the area are administered by the Palliser School Division making

them “public.”

[258] The LPRT is of the view that any potential health impacts are related to the approved CFO and

have been addressed during the NRCB process - which appears to have been presented with similar

evidence. The NRCB found:

All responses that raised health concerns (including concerns regarding asthma, airborne

illnesses, or chronic lung disease) were sent to Alberta Health Services, which indicated

that it is “unable to confirm that the concerns [raised about the proposed CFO] will cause

issues.” ¹

There is no evidence that health impacts on the surrounding area might result from the proposed

development.

[259] The Public Health provision mentioned by Mr. McFarland was not mentioned by the County, any

experts or any other party. No supporting legislative authority or case law were provided to support his

opinion.

(f)

Population Density/Population Concentration

[260] Many of the Landowners, including village residents, indicated that a major concern with the

proposed development is its “density.” The Tribunal understands this concern relates to the 80 new

residents in the first stage of the development (130 at build-out) living on NW 12, 6.1 km (3.85 miles)

from Carmangay and a shorter distance from a number of farmsteads, when normally the land might

house one or two farm families. The term “pop-up village” was used to describe the situation.

[261] The Landowners provided little or no information about the possible planning impacts to their

daily lives or the enjoyment of their properties that might be attributed to the presence of the 24 new

¹See p. 81 Exhibit 4A

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families in the community with the exception that it would “disturb our area,” “it would have a negative

effect,” and “it is not of a similar density or character.”

[262] Ms. Beunder, in her report and testimony, added a second dimension to the argument by

suggesting that the 24 housing units are located on a substandard-sized parcel. Ms. Beunder labelled the

future 80 residents a “Population Bomb,” but did not identify any potential planning impacts that might

be attributed to the new residents. Ms. Beunder stated that other Vulcan County rural landowners could

not achieve such a high residential density in the RG District and therefore approval of the proposed

development would be inappropriate.

[263] The Landowners’ submissions raised possible impacts of increased “population density”,

including land value declines, water shortages and traffic impacts, and in one case that the 24 families

might use public funds which would otherwise be used elsewhere. However, while the submissions raised

apprehensions, no reference was made by the Landowners, their representative or their expert witness to

demonstrate the residents of the proposed Colony would have a significant negative planning impact on

neighbouring land or landowners.

[264] The Tribunal concludes that while the concerns over land values, water availability and traffic are

legitimate planning matters, their potential impact was far from substantial and/or was un-substantiated.

There were no additional references to the potential impact on Village residents, farmstead residents or

farmland except the reference to similar density or character. Similar density or character might be

considered a planning issue if the possible implications of the “dissimilarity” were explained. In itself it

merits little weight.

[265] With respect to Ms. Beunders’s claim that other landowners could not pursue a project with 24

dwelling units in 4 buildings in the RG District, the LPRT notes that multi-unit dwelling is a discretionary

use and “dwelling, multi-unit” means a residential building that contains three or more dwelling units

where each unit is provided with its own separate primary access to the outside. With respect to Ms.

Beunder’s use of the term “population bomb,” except for an inference that it meant too many people in a

single spot in a rural setting, no further evidence or testimony related to its meaning or implication was

presented. In the Tribunal’s view the use of the term without further explanation was unjustified and

inappropriate.

(g)

Proximity to the Village of Carmangay

[266] A constant theme in the Landowner’s testimony is a strongly held view that the Summerland

proposal is too close to Carmangay. This perspective was supported by Mr. Smith’s well researched maps

and data showing the relative location of numerous colonies to nearby towns and villages in a multi-

county region, and then further breaking down the data by isolating the colonies established after the year

2000. The Tribunal notes that different presenters calculated slightly varying distances between

Carmangay and the subject site. Mr. Smith explained his calculation method; the Tribunal accepts the

calculation of 3.39 miles, less than the 3.8 miles noted in other submissions.

[267] Mr. Westersund provided an alternative set of maps and his observations were supported by Ms.

Vizutti. Ms. Beunder had no comment on the studies. The LPRT finds the communities that Mr.

Westersund used, which included numerous hamlets and a county residential subdivision, were neither

randomly chosen nor comprehensive and seemed to have been selected for the sole purpose of providing

support for Summerland’s location. The Tribunal gave no weight to Mr. Westersund’s maps.

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[268] The Tribunal agrees, based on Mr. Smith’s evidence, that Summerland would be the closest

colony to a town or village in the five-county region at 3.39 miles from Carmangay. However, no

substantive evidence was presented regarding the impact of this location in relation to the village or

nearby farmsteads nor what minimum distance reflects sound land use planning.

[269] Mr. Smith suggested Summerland could be seen from the village or from any nearby residences,

the Johnson residence being the closest. The Tribunal accepts Mr. Smith’s evidence that it can. However,

it is not clear how this will impact the nearby residents or village residents. For example, no evidence was

submitted to demonstrate excessive noise or other nuisance that will emanate from the 24 dwelling units,

the church, the school, and/or the cemetery, or that the development will have an undue negative visual

impact on the area. The Tribunal again concluded that the Landowners’ concerns regarding the proximity

of the Summerland site relate primarily to the distance from the CFO and not to the distance from the

proposed buildings, and their occupants, which are the subject of the application.

(h)

Lifestyle/Not a Traditional Family Farm/Agricultural Practices

[270] Several Landowners commented that the proposed development is not a traditional family farm

and does not fit in to the rural landscape in the Carmangay area. Further, that colony residents do not

participate in community affairs as other farmers and farming families do and do not support Village

businesses and services; this in turn weakens the sustainability of both the Village and local

organizations.

[271] The concern was also raised that Hutterite colonies, in general, operate on a corporate farming

model putting local farmers at a disadvantage, and further that the extensive amount of land required to

support a colony limits other farmers from acquiring land and this in turn lowers the area’s population and

weakens community viability.

[272] The Tribunal acknowledges the Landowners’ position that strong communities rely on the

participation of area residents; in this respect, it notes the Appellant’s commitment to “buying local”.

However, an applicant’s economic contributions to the community are not land use planning

considerations in a development appeal; similarly, an applicant’s relationship with the community and

their degree of participation in community affairs is not a factor mentioned in the planning legislation and

does not affect the planning merits of the proposal. By the same token, the motivations particular to the

Applicant in this case – such as the desire to establish a new daughter colony, or to facilitate a particular

way of life – are related to the user rather than the use, and as such are not appropriate land use planning

considerations.

(i)

Lack of Consultation

[273] The Landowners who testified were asked by their representative what they thought of

Summerland’s consultation efforts. All responded in a similar vein stating that consultation was minimal

to non-existent. The Appellants and their representative had a different perspective, describing their

efforts to discuss the development proposal with the community as fruitless.

[274] Extensive participation and consultation is encouraged by Alberta planning legislation and by

most municipalities as part of their standard approach to both long range planning and major development

application processing. Several Landowners spoke of two recent area projects where substantial resources

were invested into community consultation and appear to have achieved positive outcomes that benefited

the proponent, the community, and no doubt the municipality.

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[275] Assuming the legislative requirements have been met (and in this case they were), the level of

consultation and its success or failure, is not a primary consideration in deciding an appeal. Consultation

is a process where each of the parties are prepared to try to understand the other party’s’ perspective and

ideally reach an outcome that all parties can live with for the betterment of the community. Unfortunately,

consultation does not always achieve this outcome, and appeals often result when consultation efforts are

unsuccessful.

(j)

Cumulative Effects/An Additional Hutterite Colony

[276] The term “cumulative effects” was used by several Landowners in their presentations. The

current Carmangay Mayor also stated the Village does not look forward to being surrounded by four

colonies. In the current context, the LPRT understands the argument to be that the three Hutterite colonies

in the Carmangay area each impact the surrounding area, and that Summerland would add many more

impacts given its size and location.

[277] However, no information was provided about the nature of the impacts with the exception of

manure odours resulting from the predominant winds. In the absence of any additional information, the

Tribunal concludes the Landowner’s cumulative impact concerns lie with the CFO aspect of Hutterite

colonies - not with any impacts the addition of 24 families will have on Carmangay or the surrounding

area. As noted previously, the approval of CFOs are outside the LPRT’s jurisdiction.

[278] For some Landowners, the objection to “cumulative effects” likely also referred to the combined

impact of this CFO together with the proposed development, and potentially those of other existing uses

and development in the area. The LPRT notes that in the Hutterite Brethren case, the Court of Appeal

found the SDAB was entitled to refuse a similar development proposal after looking at the facts

holistically, and comprehensively reviewing the proposed development to determine its compatibility

with uses of the surrounding area.

[279] However, the LPRT notes the relevant facts have changed since the Hutterite Brethren was heard.

On January 23, 2018, the NRCB approved the CFO. The CFO has since begun operation and its impacts

are no longer speculative. The development application, while similar, has been altered to include a

different, odour-free sewage disposal system. Different evidence was given at this hearing than at the

SDAB hearing, which was the subject of that appeal. On the evidence before it, the LPRT is satisfied the

cumulative effects of the proposed development will be compatible with uses in the surrounding area,

when considered in context and taking into account the effects of other existing development.

Other Considerations

[280] The Tribunal was asked to balance community or local interests against provincial interests.

Willow Creek was cited as an authority for that proposition. While the facts in this matter are clearly

distinguishable from that case, the Tribunal recognizes that community and local impacts are relevant

considerations in development appeals and is of the opinion local concerns have been duly noted and

assessed.

[281] The Tribunal has considered s. 687(3) of the Act and is of the opinion that the proposed

development would not unduly interfere with the amenities of the neighbourhood or materially interfere

or affect the use, enjoyment or value of neighboring parcels of land and that the proposed development

conforms with the use prescribed in the LUB. There was no evidence the proposed development would

interfere with amenities in the area. Other than minor traffic impacts which have been described earlier,

no other concerns were mentioned by any party.

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[282] The Tribunal did hear evidence from Landowners who believed the proposed development would

negatively impact the use and enjoyment of their properties primarily because of odour emanating from

the CFO and potentially from the sewage treatment system. The LPRT accepted evidence the sewage

treatment system is odour free, thus this concern is not supported by evidence. While odours may be

transmitted from the CFO, the CFO is not within the jurisdiction of this Tribunal; further, Landowners

who farmed in the vicinity of the development all indicated they intended to continue to farm their lands

regardless of whether the development is approved or not.

Summary and Conclusion

[283] This appeal relates to the development application submitted by the Hutterite Brethren of

Summerland on June 7, 2021. The application was deemed refused on July 14, 2021, owing to a tie vote

by the MPC. While there is much history involving previous attempts by Summerland to obtain a

development permit to establish a colony, that history is not relevant to this appeal.

[284] The Tribunal heard testimony from all parties involved in the development appeal and reviewed

the reports prepared by the experts, witnesses, and Vulcan County.

[285] The planning situation is one where the Appellant received NRCB approval for a major CFO

project on the same quarter section as the subject application. The NRCB application was opposed by

most, if not all, of the Landowners who presented their views to the LPRT. To make matters even more

complex, the Appellant (Summerland) is in the process of implementing the NRCB decision. The

Tribunal noted on numerous occasions how difficult it is for Landowners to distinguish between the two

applications.

[286] Each expert argued that various provisions in the SSRP, the MDP and the LUB support either

approval or refusal of the development application, and presented their own interpretations of various

strategies, objectives, policies, legislation and regulations. The Tribunal concluded that the application for

multi-unit dwellings (24 units), a church, a school building, a kindergarten, a kitchen and kitchen prep,

and a cemetery is consistent with the relevant provisions of the SSRP, the MDP and the purpose

statement of the LUB’s Rural General (RG) District. No characteristics of the proposed development,

including the fact that a CFO is located on the same site, were found to be contrary to the intent of the

SSRP or the MDP.

[287] The Tribunal examined each of the possible potential conflicts individually and cumulatively with

the relevant LUB provisions, as well as conformity with the Act, Regulation, statutory plans, and other

applicable documents. The LPRT concluded that the statements and information provided by the

Landowners did not convince the LPRT the application should be refused. For these reasons the Tribunal

conditionally approved the application.

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Other Approvals

[288] The landowner/developer is responsible for all other applicable permits or approvals required by

other enactments (for example, Water Act, Nuisance and General Sanitation Regulation, building permit,

etc.) from the appropriate authority. The LPRT is neither granting nor implying any approvals other than

that of the development permit. Any other approvals are beyond the LPRT’s scope of a development

appeal. Satisfaction of such requirements are the responsibility of the landowner/developer.

Dated at the City of Edmonton in the Province of Alberta this 29^thday of April, 2022.

LAND AND PROPERTY RIGHTS TRIBUNAL

_________________________________________

(SGD.) D. Woolsey, Member

Page 49

APPENDIX A

PARTIES WHO ATTENDED, MADE SUBMISSIONS OR GAVE EVIDENCE AT THE HEARING

NAME

CAPACITY

R. Harrison

B. Findlater

J. Hofer

M. Hofer

D. Willund

S. Sparks

Appellant, Wilson Laycraft LLP

Appellant, Summerland Colony

Appellant, Summerland Colony Observer

Appellant, Witness

C. Vizzutti

L. Westersund

G. Fitch

A. Erickson

L. Lyckman

S. Cockwill

J. Scheider

R. Dyck

Appellant, Witness

Respondent, McLennan Ross LLP

Respondent, Vulcan County

Respondent, Vulcan County Observer

Oldman River Regional Services Commission, Observer

Lethbridge County, Observer

NRCB, Observer

H. Janzen

F. Vance

M. Niven

R. Barata

N. Irwin

K. Beunder

C. Bishop

D. Fraser

Affected Persons, Carscallen LLP

Affected Persons, Witness

Affected Person

S. Hovde

Affected Person

D. Johnson

W. Johnson

B. McFarland

T. McFarland

K. Nichols

M. Paulsen

M. Smith

Affected Person

A. Turner

M. Bishop

C. Hubka

M. Janz

R. Turner

S. Valupadas

Affected Person

Affected Person, Observer

APPENDIX B

DOCUMENTS RECEIVED PRIOR TO THE HEARING

NO.

ITEM

P1A

P2R

P3AP

P4AP

1

Appellant requests for Postponement (2 pp)

SA’s response to Postponement (2 pp)

Village of Carmangay response to Postponement (5 pp)

Request for Postponement (2 pp)

Information Package (165 pp)

2A

Appellant’s Cover Letter (1 pp)

3A

Legal Submissions (961 pp)

4A

Appellant’s Evidence (453 pp)

5A

J. Hofer Will Say Statement (5 pp)

6A

S. Sparks Will Say Statement (2 pp)

7A

8A

Expert Report of L. Westersund (47 pp)

Expert Report of C. Vizzutti (8 pp)

9AP

10AP

11A

12A

13A

14A

15A

16AP

17AP

18AP

Affidavit of L. Beecroft (217 pp)

K. Beunder Expert Report (24 pp)

Cover Letter Appellant’s Supplemental Submissions (1 pp)

Additional Responding Authorities of the Appellant (57 pp)

Appellant’s Supplemental Evidence (29 pp)

J. Hofer Will Say Statement Supplemental (3 pp)

Reply Report of C. Vizzutti (7 pp)

Schedule A – corrections to K. Beunder’s Report (3 pp)

Harrison re Expert Witnesses (2 pp)

Cross Examination Witnesses (34 pp)

APPENDIX C

LEGISLATION

The Act and associated regulations contain criteria that apply to appeals of planning decisions. While the

following list may not be exhaustive, some key provisions are reproduced below.

Municipal Government Act

Purpose of this Part

Section 617 is the main guideline from which all other provincial and municipal planning documents are

derived. Therefore, in reviewing development appeals, every proposal must comply with the philosophy

expressed in 617.

617 The purpose of this Part and the regulations and bylaws under this Part is to provide means whereby

plans and related matters may be prepared and adopted

(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.

Permitted and discretionary uses

Section 642 deals with a the authority that a Development Authority has respecting permitted and

discretionary uses

642(1) When a person applies for a development permit in respect of a development provided for by a

land use bylaw pursuant to section 640(2)(b)(i), the development authority must, if the application

otherwise conforms to the land use bylaw and is complete in accordance with section 683.1, issue a

development permit with or without conditions as provided for in the land use bylaw.

(2) When a person applies for a development permit in respect of a development that may, in the

discretion of a development authority, be permitted pursuant to section 640(2)(b)(ii), the development

authority may, if the application is complete in accordance with section 683.1, issue a development

permit with or without conditions as provided for in the land use bylaw.

(3) A decision of a development authority on an application for a development permit must be in writing,

and a copy of the decision, together with a written notice specifying the date on which the written

decision was given and containing any other information required by the regulations, must be given or

sent to the applicant on the same day the written decision is given.

(4) If a development authority refuses an application for a development permit, the development authority

must issue to the applicant a notice, in the form and manner provided for in the land use bylaw, that the

application has been refused and provide the reasons for the refusal.

…

Section 683 deals with the responsibilities of a municipality regarding issuance of a development permit.

Permit

683 Except as otherwise provided in a land use bylaw, a person may not commence any development

unless the person has been issued a development permit in respect of it pursuant to the land use bylaw.

Development applications

683.1(1) A development authority must, within 20 days after the receipt of an application for a

development permit, determine whether the application is complete.

(2) An application is complete if, in the opinion of the development authority, the application contains the

documents and other information necessary to review the application.

(3) The time period referred to in subsection (1) may be extended by an agreement in writing between the

applicant and the development authority or, if applicable, in accordance with a land use bylaw made

pursuant to section 640.1(a).

(4) If the development authority does not make a determination referred to in subsection (1) within the

time required under subsection (1) or (3), the application is deemed to be complete.

(5) If a development authority determines that the application is complete, the development authority

must issue to the applicant an acknowledgment in the form and manner provided for in the land use

bylaw that the application is complete.

(6) If the development authority determines that the application is incomplete, the development authority

must issue to the applicant a notice in the form and manner provided for in the land use bylaw that the

application is incomplete and that any outstanding documents and information referred to in the notice

must be submitted by a date set out in the notice or a later date agreed on between the applicant and the

development authority in order for the application to be considered complete.

(7) If the development authority determines that the information and documents submitted under

subsection (6) are complete, the development authority must issue to the applicant an acknowledgment in

the form and manner provided for in the land use bylaw that the application is complete.

(8) If the applicant fails to submit all the outstanding information and documents on or before the date

referred to in subsection (6), the application is deemed to be refused.

(9) If an application is deemed to be refused under subsection (8), the development authority must issue

to the applicant a notice in the form and manner provided for in the land use bylaw that the application

has been refused and the reason for the refusal.

(10) Despite that the development authority has issued an acknowledgment under subsection (5) or (7), in

the course of reviewing the application, the development authority may request additional information or

documentation from the applicant that the development authority considers necessary to review the

application.

Grounds for appeal

Section 685 addresses grounds for appeal by an Applicant of a decision by the Development Authority

685(1) If a development authority

(a) fails or refuses to issue a development permit to a person,

(b) issues a development permit subject to conditions, or

(c) issues an order under section 645,

the person applying for the permit or affected by the order under section 645 may appeal the decision in

accordance with subsection (2.1).

(1.1) A decision of a development authority must state whether an appeal lies to a subdivision and

development appeal board or to the Land and Property Rights Tribunal.

(2) In addition to an applicant under subsection (1), any person affected by an order, decision or

development permit made or issued by a development authority may appeal the decision in accordance

with subsection (2.1).

(2.1) An appeal referred to in subsection (1) or (2) may be made

(a) to the Land and Property Rights Tribunal

(i) unless otherwise provided in the regulations under section 694(1)(h.2)(i), where the

land that is the subject of the application

(A) is within the Green Area as classified by the Minister responsible for the

Public Lands Act,

(B) contains, is adjacent to or is within the prescribed distance of a highway, a

body of water, a sewage treatment or waste management facility or a historical

site,

(C) is the subject of a licence, permit, approval or other authorization granted by

the Natural Resources Conservation Board, Energy Resources Conservation

Board, Alberta Energy Regulator, Alberta Energy and Utilities Board or Alberta

Utilities Commission,

or

(D) is the subject of a licence, permit, approval or other authorization granted by

the Minister of Environment and Parks,

or

(ii) in any other circumstances described in the regulations under section 694(1)(h.2)(ii),

or

(b) in all other cases, to the subdivision and development appeal board.

(3) Despite subsections (1) and (2), no appeal lies in respect of the issuance of a development permit for a

permitted use unless the provisions of the land use bylaw were relaxed, varied or misinterpreted or the

application for the development permit was deemed to be refused under section 683.1(8).

(4) Despite subsections (1), (2) and (3), if a decision with respect to a development permit application in

respect of a direct control district

(a) is made by a council, there is no appeal to the subdivision and development appeal board, or

(b) is made by a development authority, the appeal is limited to whether the development

authority followed the directions of council, and if the subdivision and development appeal board

finds that the development authority did not follow the directions it may, in accordance with the

directions, substitute its decision for the development authority’s decision.

Appeals

Section 686 identifies procedures that a board hearing an appeal must follow

686(1) A development appeal is commenced by filing a notice of the appeal, containing reasons, with the

board hearing the appeal

(a) in the case of an appeal made by a person referred to in section 685(1)

(i) with respect to an application for a development permit,

(A) within 21 days after the date on which the written decision is given under

section 642, or

(B) if no decision is made with respect to the application within the 40-day

period, or within any extension of that period under section 684, within 21 days

after the date the period or extension expires,

or

(ii) with respect to an order under section 645, within 21 days after the date on which the

order is made,

or

(b) in the case of an appeal made by a person referred to in section 685(2), within 21 days after

the date on which the notice of the issuance of the permit was given in accordance with the land

use bylaw.

(1.1) Where a person files a notice of appeal with the wrong board, that board must refer the appeal to

the appropriate board and the appropriate board must hear the appeal as if the notice of appeal had been

filed with it and it is deemed to have received the notice of appeal from the applicant on the date it

receives the notice of appeal from the first board, if

(a) in the case of a person referred to in subsection (1), the person files the notice with the wrong

board within 21 days after receipt of the written decision or the deemed refusal, or

(b) in the case of a person referred to in subsection (2), the person files the notice with the wrong

board within 21 days after the date on which the notice of the issuance of the permit was given in

accordance with the land use bylaw.

(2) The board hearing an appeal referred to in subsection (1) must hold an appeal hearing within 30 days

after receipt of a notice of appeal.

(3) The board hearing an appeal referred to in subsection (1) must give at least 5 days’ notice in writing

of the hearing

(a) to the appellant,

(b) to the development authority whose order, decision or development permit is the subject of the

appeal, and

(c) to those owners required to be notified under the land use bylaw and any other person that the

subdivision and development appeal board considers to be affected by the appeal and should be

notified.

(4) The board hearing an appeal referred to in subsection (1) must make available for public inspection

before the commencement of the hearing all relevant documents and materials respecting the appeal,

including

(a) the application for the development permit, the decision and the notice of appeal, or

(b) the order under section 645.

(4.1) Subsections (1)(b) and (3)(c) do not apply to an appeal of a deemed refusal under section 683.1(8).

(5) In subsection (3), “owner” means the person shown as the owner of land on the assessment roll

prepared under Part 9.

Hearing and Decision

Section 687 identified procedures to be followed at a hearing for a development permit appeal

687(1) At a hearing under section 686, the board hearing the appeal must hear

(a) the appellant or any person acting on behalf of the appellant,

(b) the development authority from whose order, decision or development permit the appeal is

made, or a person acting on behalf of the development authority,

(c) any other person who was given notice of the hearing and who wishes to be heard, or a

person acting on behalf of that person, and

(d) any other person who claims to be affected by the order, decision or permit and that the

subdivision and development appeal board agrees to hear, or a person acting on behalf of that

person.

(2) The board hearing the appeal referred to in subsection (1) must give its decision in writing together

with reasons for the decision within 15 days after concluding the hearing.

(3) In determining an appeal, the board hearing the appeal referred to in subsection (1)

(a) repealed 2020 c39 s10(52);

(a.1) must comply with any applicable land use policies;

(a.2) subject to section 638, must comply with any applicable statutory plans;

(a.3) subject to clauses (a.4) and (d), must comply with any land use bylaw in effect;

(a.4) must comply with the applicable requirements of the regulations under the Gaming, Liquor

and Cannabis Act respecting the location of premises described in a cannabis licence and

distances between those premises and other premises;

(b) must have regard to but is not bound by the subdivision and development regulations;

(c) may confirm, revoke or vary the order, decision or development permit or any condition

attached to any of them or make or substitute an order, decision or permit of its

own;

(d) may make an order or decision or issue or confirm the issue of a development permit even

though the proposed development does not comply with the land use bylaw if, in

its opinion,

(i) the proposed development would not

(A) unduly interfere with the amenities of the neighbourhood, or

(B) materially interfere with or affect the use, enjoyment or value of

neighbouring parcels of land,

and

(ii) the proposed development conforms with the use prescribed for that land or building

in the land use bylaw.

(4) In the case of an appeal of the deemed refusal of an application under section 683.1(8), the board

must determine whether the documents and information that the applicant provided met the requirements

of section 683.1(2).

Subdivision and Development Appeal Regulation – Alberta Regulation 94/2021

Appeals removed from list

2(1) The following are removed from the list of circumstances where a notice of appeal of a decision of a

development authority may be filed with the Land and Property Rights Tribunal:

(a) an appeal where the land that is the subject of the application is within the Green Area as

classified by the Minister responsible for the Public Lands Act, as referred to in section

685(2.1)(a)(i)(A) of the Act;

(b) an appeal where the land that is the subject of the application contains, is adjacent to or is

within the prescribed distance of a highway, a body of water, a sewage treatment or waste

management facility or a historical site, as referred to in section 685(2.1)(a)(i)(B) of the Act.

(2) Subject to subsections (3) and (4), the appeals referred to in subsection (1) may be commenced by

filing a notice of appeal with the subdivision and development appeal board.

(3) If the land that is the subject of an appeal referred to in subsection (1) is subject to a licence, permit,

approval or other authorization referred to in section 685(2.1)(a)(i)(C) or (D) of the Act, then, despite

subsection (1), the appeal may be commenced by filing a notice of appeal with the Land and Property

Rights Tribunal.

Subdivision and Development Regulation - Alberta Regulation 43/2002

Distance from landfill, waste sites

Section 13 identifies separation distances for development from landfill and waste sites

13(1) In this section,

(a) “disposal area” means those areas of a parcel of land

(i) that have been used and will not be used again for the placing of waste material, or

(ii) where waste processing or a burning activity is conducted in conjunction with a

hazardous waste management facility or landfill;

(b) “working area” means those areas of a parcel of land

(i) that are currently being used or that still remain to be used for the placing of waste

material, or

(ii) where waste processing or a burning activity is conducted in conjunction with a

hazardous waste management facility, landfill or storage site.

…

(3) Subject to subsection (5), a development authority shall not issue a development permit for a school,

hospital, food establishment or residence, nor may a school, hospital, food establishment or residence be

constructed if the building site

(a) is within 450 metres of the working area of an operating landfill,

(b) is within 300 metres of the disposal area of an operating or non-operating landfill,

(c) is within 450 metres of the working area or disposal area of a non-operating hazardous waste

management facility,

(c.1) is within 450 metres of the working area or disposal area of an operating hazardous waste

management facility, or

(d) is within 300 metres of the disposal area of an operating storage site.

ALBERTA LAND USE POLICIES

Land Use Policies were established by Lieutenant Governor in Council pursuant to section 618.4 of the

Act.

ALBERTA LAND STEWARDSHIP REGIONAL PLAN

Land use planning decisions must be consistent with any applicable Regional Plans made

pursuant to the Alberta Land Stewardship Act – in this case South Saskatchewan Regional Plan

Agriculture

Objective:

• The region’s agricultural industry is maintained and diversified.

Strategies:

1.1. Maintain an agricultural land base by reducing the fragmentation and conversion of agricultural

land.

…

Agriculture

Municipalities are expected to:

8.19 Identify areas where agricultural activities, including extensive and intensive agricultural and

associated activities, should be the primary land use in the region.

8.20 Limit the fragmentation of agricultural lands and their premature conversion to other, non-

agricultural uses, especially within areas where agriculture has been identified as a primary land use in the

region. Municipal planning, policies and tools that promote the efficient use of land should be used where

appropriate to support this strategy.

8.21 Employ appropriate planning tools to direct non-agricultural subdivision and development to areas

where such development will not constrain agricultural activities, or to areas of lower-quality agricultural

lands.

8.22 Minimize conflicts between intensive agricultural operations and incompatible land uses by using

appropriate planning tools, setback distances and other mitigating measures.

Maintaining an agricultural land base recognizes the value of agricultural land for sustainable growth and

diversification of the agricultural industry as well as providing an opportunity for expansion of

agricultural production and value-added agribusinesses in the region.

…

MUNICIPAL BYLAWS AND STATUTORY PLANS

Municipal Development Plan

Introduction

A municipal development plan is a long‐range statutory planning document providing a municipality’s

elected officials, administration, ratepayers and developers with a framework of policies for making

decisions regarding future growth and development opportunities. The policies of a municipal

development plan shape the growth and development of a municipality. For a rural municipality where

expanding the land base to allow for physical growth is often not an option, growth and development

involves the establishment of new land uses and the intensification of existing ones within the current

municipal boundaries. This can take the form of diversification of agricultural operations, industrial

development of natural resources, highway commercial enterprises and the subdivision of agricultural

lands for residential acreages

Philosophy

Vulcan County is a rural municipality and we celebrate our rural way of life. A large part of what

residents’ value about living within the County is an appreciation for being rural. As a County, we face

pressures for growth and development and as such, need to balance these pressures against our rural

character. Vulcan County’s land base is agricultural and Council wishes to promote the agriculture

industry as the primary land use within the County. Council recognizes the ability to diversify is a

necessity to many agricultural producers, many of whom still operate under the auspices of the family

farm and incorporates a degree of flexibility into its planning document for that reason.

Agricultural Objectives

To protect good quality agricultural land while allowing for subdivision and development to occur for a

variety of uses as specified in the Land Use Bylaw.

To encourage development opportunities within Vulcan County to expand the County’s assessment base

while limiting conflicts with existing land uses.

…

Vulcan County is an agricultural-based municipality. Traditionally, grain crops have accounted for the

bulk of production due to a lack of irrigation throughout much of the municipality. Grain production

requires large tracts of land which is illustrated in Vulcan County where the quarter section has been the

predominant parcel size. The agriculture industry is more globally connected today and will be even more

so in the future. Diversification within the family farm and investigating new methods of production may

become increasingly necessary to remain viable.

OBJECTIVES:

• The County recognizes agriculture as the priority land use in rural areas.

• Agricultural diversification shall be supported and promoted.

• Agricultural industries and related services shall be located to best serve the agricultural community.

• Whenever possible, non-agricultural uses shall not be located in areas of agricultural activity.

• Wherever appropriate, non-agricultural land uses in rural areas should be clustered or grouped to

minimize conflicts with agricultural operations.

…

1.1 The County shall support the preservation of agricultural land and shall promote diversification of the

agricultural sector by supporting many types of agricultural operations.

1.2 The County shall ensure that policies in the Land Use Bylaw protect agricultural land from non-

agricultural development.

1.3 Better utilizing land and promoting more compact development are two methods that can limit land

conversion. The County shall ensure that the application of these methods are utilized in the decision

making process.

…

4.3 The Natural Resources Conservation Board (NRCB) in its approval review should also consider:

(a) the cumulative effects of a new approval on any area near other existing confined feeding operations;

(b) impacts on environmentally sensitive areas shown in the report, “Vulcan County: Environmentally

Sensitive Areas in the Oldman River Region”;

(c) giving notice to adjacent landowners, even in the case of applications for registration or authorization;

(d) proof of the availability of water, specifically, confirmation of access and appropriate provision of the

sufficient quantity and suitable quality of the required water supply.

…

Economy

It is important that the types of industry and commercial development that locate in the County are

appropriate for rural areas. Industrial development in the County must be directed to locations which

minimize environmental impacts and land use conflicts. In general, many commercial activities can co-

exist with industry in designated districts. Because existing industrial and commercial activities in the

County are fundamental to the regional economy, it is important that the long term viability of these

activities is protected from incompatible land uses. The majority of commercial/industrial uses are located

within the County’s hamlets and consist mainly of service-oriented businesses.

OBJECTIVES:

• To expand and diversify the local economy.

• To create a positive municipal environment that encourages and supports business.

Land Use Bylaw

RURAL GENERAL – RG

PURPOSE: To protect the agricultural land base of the municipality while allowing non-agricultural

developments which complement the area's economy.

SECTION 1 USES

1.1

Permitted Uses

Accessory building, structure or use

Additions to existing buildings

Agricultural building (e)

Agricultural operation (e)

Extensive agriculture (e)

Home occupation 1 (e)

Home occupation 2

Manufactured dwellings 1

Meteorological tower

Modular dwellings 1 and 2

Moved-in building

Moved-in dwelling

Ready-to-move dwelling

Renewable energy, individual

Shipping container (e)

Sign, Category 1 (e)

Sign, Category 2

Single detached dwelling

Utilities (e)

1.2

Discretionary Uses – MPC

Abattoir

Accessory building, structure or use (prior to principal building or use)

Agricultural repair shop

Airstrip

Animal care service, small and large

Bed and breakfast

Cemetery and interment services

Child care facility

Community hall

Duplex

Exhibition centre

Home occupation 3

Intensive horticultural operation

Kennel, breeding

Kennel, breeding (existing)

Multi-unit dwelling

Mushroom farm

Natural resource extraction and processing

Public building or use

Religious assembly

Renewable energy, commercial/industrial

Riding stable/arena

Rodeo grounds

School

Shooting range (existing)

Stripping and sale of topsoil

Telecommunication tower

Work camp, long term

Work camp, short term

Discretionary Uses – DO

Dwelling unit, combined

Manufactured dwelling 2

Second dwelling unit

Secondary suite

Sign, Category 3

(e) means “Exempt” and development will not require a development permit if it meets all the provisions

of this Bylaw and is in accordance with any applicable requirements in Schedule 3.

SECTION 19 SUITABILITY OF SITES

19.1 Notwithstanding that a use of land may be permitted or discretionary or considered similar in

nature to a permitted or discretionary use in a land use district, the Development Authority may

refuse to approve a subdivision or issue a development permit if the Development Authority is

made aware of or if, in their opinion, the site of the proposed building or use is not safe or

suitable based on the following:

(a) does not have safe legal and physical access to a maintained road in accordance with the Land

Use Bylaw, other municipal requirements or those of Alberta Transportation if within 300 m

(984 ft.) of a provincial highway or 800 m (2,625 ft.) from the centre point of an intersection

of a controlled highway and a public road;

(b) has a high water table or soil conditions which make the site unsuitable for foundations and/or

sewage disposal systems in accordance with provincial regulations;

(c) is situated on an unstable slope;

(d) consists of unconsolidated material unsuitable for building;

(e) is situated in an area which may be prone to flooding, subsidence or erosion;

(f) does not comply with the requirements of the South Saskatchewan Regional Plan, Subdivision

and Development Regulation or any other applicable statutory plans;

(g) is situated over an active or abandoned coal mine or oil or gas well or pipeline that has not

been sufficiently remediated;

(h) would expose the structure itself and/or people living and working there to risk from the

operations of a nearby airport or airstrip;

(i) is unsafe due to contamination by previous land uses;

(j) does not meet the minimum setback requirements from a sour gas well or bulk ammonia

storage facility;

(k) is situated closer to a confined feeding operation than the minimum distance separation

recommended by the Natural Resources Conservation Board;

(l) does not have an adequate (quality or volume) water supply;

(m) does not have an adequate means of wastewater (i.e. sewage) disposal;

(n) does not have an adequate means of stormwater disposal;

(o) does not meet an applicable measurable standard (i.e. lot size or setback requirements) or any

other applicable standards or requirements of this Bylaw;

(p) would prevent or interfere with the natural and economic extension of a nearby developed area

including but not limited to an oil or gas field, a sewage treatment plant, a waste disposal or

transfer site, a gravel pit, a pipeline or a road system;

(q) is subject to any easement, caveat, restrictive covenant or other registered encumbrance which

makes it impossible to build on the site.

…

SECTION 20 NUMBER OF DWELLING UNITS ON A PARCEL

20.1 No person shall construct or locate or cause to be constructed or located more than one dwelling unit

on a parcel unless authorized by the Development Authority through the issuance of a development

permit and only where allowed in the land use district for which the application was made.

…

SECTION 34 DISCRETIONARY USE APPLICATIONS

34.1 Upon receipt of a completed application for a development permit for a discretionary use for which

the Municipal Planning Commission is authorized to decide upon, the Development Officer shall:

(a) notify adjacent landowners and other persons likely to be affected in accordance with Section

43; and

(b) refer the application to the Municipal Planning Commission for a decision.

34.2 Upon receipt of a completed application for a development permit for a discretionary use for which

the Development Officer is authorized to decide upon, the Development Officer shall:

(a) notify adjacent landowners and other persons likely to be affected in accordance with Section

43; and

(b) make a decision on the application in accordance with Section 34.3 or refer the application to

the Municipal Planning Commission for a decision.

34.3 When making a decision on a development permit for a discretionary use, the Development

Authority must take into account:

(a) any statutory plans or non-statutory plans or studies affecting the parcel or type of

development;

(b) the purpose statement in the applicable land use district;

(c) the appropriateness of the location and parcel for the proposed development;

(d) the land use compatibility and impact of the proposed development with respect to adjacent

land uses and the greater community;

(e) the merits of the proposed development;

(f) access, transportation and servicing requirements.

…