The Manitoba Pork Council is closely watching what is likely a precedent-setting decision from the Municipal Board.
On July 27, hearings began in Winnipeg for the appeal of an application of Lilyfield Quarry Inc., which the RM of Rosser denied in late 2018. This followed several application attempts under more than one owner in a battle that has gone on for over 10 years, as reported by the Manitoba Co-operator earlier this July.
Why it matters: Lilyfield Quarry Inc.’s appeal marks the first time amendments to the planning act allowing that appeal have been used. How the hearings and decision play out may affect how large livestock producers, who have the same right of appeal, deal with municipalities in the future.
This is the first hearing under changes to the Planning Act made in 2018 under Bill 19, which allows aggregate quarry owners to appeal to the Municipal Board if a municipal government denies their conditional use application.
Under the same changes, large livestock operations are also allowed to appeal but, to his knowledge, none have yet to do so, said Grant Melnychuk, manager of planning and sustainable development at the Manitoba Pork Council.
“We’re kind of taking a cautious approach to the new provisions in the act and whether or not we would recommend producers go this route,” said Melnychuk, who attended the first day of the hearing.
Early on, Orvel Currie, lawyer for the RM of Rosser, told the board he intended to ask for guidance on how appeals like this should proceed.
“There’s no precedent,” he said, adding that he and Charles Chappell, lawyer for Lilyfield Quarry Inc. and its owner, Colleen Munro, had worked to put together their presentations in a way that seemed acceptable to the board but, “We need some guidance there.”
At the end of the second day of the hearing, the board declined to hear closing remarks from both lawyers because of the precedent-setting nature of the decision, said acting chair Tom Raine. He asked both lawyers to submit written remarks including their view of what the standard for review by the Municipal Board should be, and what the board’s jurisdiction is to accept, modify or reject agreed-upon conditions.
Along with the right to appeal, Bill 19 brought in several changes designed to streamline the process of upgrading livestock facilities, including the ability to do upgrades or reconstruction without requiring more municipal hearings.
However, the bill was and continues to be controversial among some.
Lobbying group Hog Watch strongly opposed the bill when the province tabled it, writing on its website: “Bill 19 will silence the public… If local politicians take this route, the province will have the only and final say on where hog factories can be built.”
After the Manitoba Co-operator published a report on the Lilyfield Quarry appeal and its policy implications, Ruth Pryzner, who has worked and written for Hog Watch, wrote in a letter to the editor: “While the Rosser situation involves the new right of appeal by an aggregate quarry developer of a council’s rejection of a conditional use application, the Pallister government’s creation of a right of appeal for rejected livestock operation proposals shows the government’s real priority that corporations, not people, matter.”
What does ‘negatively affect’ mean?
The crux of the hearing came down to different interpretations of criteria within the Planning Act, which a proposal must meet to be granted a conditional use — particularly, the criteria that a development, “not be detrimental to the health or general welfare of people living or working in the surrounding area, or negatively affect other properties or potential development in the surrounding area.”
Since the quarry was first proposed over 10 years ago, many residents have opposed it based on concerns it will affect their water, create excessive dust and otherwise mar their serene agricultural neighbourhood.
James and Judy Thevenot and daughter Tessa, 18, arrived at the hearing with a group of employees from their farm Six Pines Ranch. The Thevenots have a petting farm, wedding venue and seasonal haunted attraction set on a Victorian-era farm site half a mile from the proposed quarry.
“There is history here,” Judy Thevenot told the board. She said they had raised their kids on the farm and hoped to pass it down to them one day.
She said she feared the noise from blasting would spook their animals, making them a danger to the many school-aged kids who visit on field trips.
She worried flying rocks from botched blasting would seriously injure someone, or that their water supply would be interrupted and force them to cancel weddings or other events.
She told the board they would likely have to close their business if the quarry came in.
The Thevenots said they have actively opposed the quarry since the idea was first proposed in 2007.
Tessa Thevenot showed the board a small, white T-shirt with “Stop the Quarry” in red and black on the front.
“In 2007, this was my shirt that I had to wear as a dress because it was too big for me,” she told the board. “So when I’m asked how I know a quarry will negatively affect my life, my answer is that it already has… if 13 years of my parents and other members of the community pleading… is not enough, then nothing will ever be.”
However, prior to the hearing, Munro and the RM of Rosser signed a consent to conditions agreement laying out 15 pages of conditions for Munro to meet in order for the quarry to operate.
According to the agreement, these include limiting operating hours Monday to Friday from 6 a.m. to 7 p.m., Saturday 6 a.m. to 3 p.m. and staying closed on Sundays. Blasting is to occur once or twice per week for the first two months and then be reduced to once every two weeks.
The quarry is to give residents 48 hours of notice before blasting.
“So don’t put anyone on a horse for five minutes,” Munro said.
Munro will also hire blasting company Austin Powder to complete blasts in order to further address safety concerns like flying rocks.
The agreement requires the quarry to have a groundwater monitoring plan, address water quality issues immediately, including well replacement if a well is shown to be affected by quarrying operations, and water hauling to two local dairy farmers if their water supply is interrupted.
They agreed that quarrying would go not deeper into the bedrock than the “Gunn Member” formation to ensure the aquifer wasn’t damaged.
Hydrogeologist Jeff Bell, who spoke on Munro’s behalf, said disturbances to well water were possible but unlikely.
The key point of contention between the municipality and Munro was traffic, specifically that the intersection of Provincial Trunk Highway 6 and Provincial Road 236 needs improvement to safely handle the increase of truck traffic.
The quarry is expected to add about 240 additional traffic units to the area. Representatives from Manitoba Infrastructure and Transportation said the intersection is a “regional priority” and improvements are in the design phase. However, they said that the additional traffic isn’t likely to cause immediate issues.
From a planning perspective, the quarry fits the criteria set out in the Planning Act, said planning consultant John Wintrup, who spoke on behalf of Munro.
However, he acknowledged that many aspects of “general welfare” are subjective — he used the example of smell. The amount of odour a person can tolerate differs widely from person to person, he said.
He acknowledged there was a difference between technical review and residents’ social and economic concerns.
Avoid if possible
For Melnychuk, his takeaway from the hearing was, “Early consultation is key.”
A quarry or livestock operation should consult with the community and municipality early, “so you can at all costs avoid that appeal hearing,” he said.
He added that community consultation might avoid some of the hostility of a Municipal Board hearing.
During the hearing, there were occasional verbal outbursts of anger or denial from residents. One resident used their presentation to attempt to smear Munro’s character before she was stopped by Raine.
Meanwhile, in her closing remarks, Munro suggested that one resident might be violating municipal bylaws by hauling gravel down Sturgeon Road.
Melnychuk suggested that if a pork producer had his or her application rejected, “We would take a long, hard look to see whether that producer could in some way alter their proposal and maybe redesign it and reapply.”
In terms of precedent, Melnychuk said if he had a concern it would be that municipalities might use the Municipal Board as a scapegoat.
“(Pressure from residents or activists) could result in possibly some municipalities opting to deny an application and have the producer take it to the Municipal Board and see if the Municipal Board overturns that denial rather than approving an application and then potentially feeling it from their local ratepayers,” he said.
“We don’t want it to result in councils kind of taking the easy way out. We certainly don’t want this to result in producers doing the same thing and sidestepping all that early consultation,” he added.
The hearing resumes on August 18. The Municipal Board then has 30 days to make its final decision.