A limestone quarry will be built at Lilyfield in the RM of Rosser the Municipal Board has ruled in what has been called a precedent-setting decision.
Lilyfield Quarry Inc. and owner Colleen Munro are the first to appeal under changes to the Planning Act made in 2018. The changes allow aggregate quarry owners to appeal to the Municipal Board, a provincially-appointed tribunal, if a municipal government denies their conditional use application.
In a written decision dated September 17, the board ruled to approve the quarry application under a laundry list of conditions Munro and the municipality had previously signed.
The decision follows more than a decade of dispute over the land a few miles off the Perimeter on Sturgeon Road.
During the hearing James and Judy Thevenot, who own land half a mile from the site, told the board they’d opposed it since the quarry was first proposed in 2007. Another 17 residents also voiced opposition during the three-day hearings on July 27, 28, and August 18.
Over the years, multiple owners have applied to build a quarry on the site but were denied. Residents objected based on concerns it will affect their water; create excessive dust, noise and traffic; and otherwise disturb their quiet, rural neighborhood.
Prior to the hearing, Munro and the RM of Rosser signed a consent to conditions agreement laying out 15 pages of conditions the quarry must meet to operate.
According to the agreement documents, 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 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.
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 municipality asked the board to require improvements to the intersection be made before the quarry was built, or to have the quarry provide an updated traffic impact study.
The quarry is expected to add about 240 additional traffic units to the area. Representatives from Manitoba Infrastructure and Transportation told the board the additional traffic isn’t likely to cause immediate issues.
In its decision, the board did not require Lilyfield Quarry Inc. to wait on or install improvements at the intersection, and they didn’t require a further traffic study. The board noted that the RM of Rosser had not provided evidence refuting the findings from Manitoba Infrastructure and Transportation.
“(This board decision) is likely to give guidance to municipalities as well as itself in future cases on the circumstances in which it will overturn a municipality’s decision to deny a quarry,” said Gerard Kennedy, a professor of administrative law at the University of Manitoba. He spoke the Co-operator before the conclusion of the hearing.
The board asked legal counsel for both sides to give written submissions on what the role of the board should be in the appeal, how it should conduct the appeal, and what jurisdiction it had to modify or impose conditions such as those in the consent to conditions agreement.
Lawyers from both sides asked the board to essentially start over and give its own judgement on the application rather than judging if the RM of Rosser’s decision was correct. In legalese this is called a hearing “de novo.”
They also advised the board to not disregard the conditions they’d agreed on.
The board ruled it would conduct the appeal as a new hearing.
“Were this not the case, the parties to the appeal should have no ability to adduce evidence, call witnesses and there would be no requirement of the Board to ‘consider all of the evidence,’” the board wrote in its decision.
It noted that the board is not bound by any agreement regarding conditions, such as the agreement between the RM of Rosser and Munro. However, it said the consent agreement was “a significant factor in deciding if the conditions are appropriate.”
The board has a responsibility to review and determine which conditions are appropriate, it wrote.
Further analysis to come.