The Palliser Intermunicipal Subdivision and Development Appeal Board (ISDAB) released their decision over whether to allow County of Paintearth resident Jason Felzien’s bin yard to remain at its current location.
This decision comes early as the deadline for their determination was set for Jan. 26 and was actually received Fri. Jan. 21.
At the beginning of the hearing, Counsel for the appellants (Jason Felzien) advised that the appellants would not be advancing their first ground of appeal, that the development can be in existence without a development permit – the lawful non-conformity argument.
The appeal is dealing solely with the request for a variance.
The ISDAB denied the appeal request to leave the nine bins where they remain due to safety concerns.
“The Board notes that the risk of an incident occurring may be low; however, should an incident or accident occur, the results could be catastrophic.
“The size and weight of the bins would be very significant should they fall. Should the bins fall onto a vehicle or a pedestrian or person using the road or ditch (like someone passing on horseback), there could be significant injury, or possibly death.
“The Board is of the opinion that the imposition of the set back standard was done to address these safety concerns.
“The Board notes that section 617 of the MGA contemplates that private rights may be constrained for the greater public good, and the Board finds that setbacks for safety reasons of those using the road would meet that greater public good.
“As a result, the Board finds that the safety considerations are weighty concerns that the Board finds persuasive.”
The ISDAB agreed to grant the development permit and have the development meet all district and general requirements set by County of Paintearth’s Land Use Bylaw 698-21 including setbacks from property lines, water bodies, brinks of slopes and municipal roads with a 25 ft. variance granted to the front yard setback from 100 ft. to 75 ft. from the center line of Range Road 145 (RR-145).
Felzien is in the process of securing a geotechnical survey which would show that the spot chosen for the bins initially was indeed the best as the ground is more firm than the proposed spot further inland from the road.
The current location of the bins is also the area of a former oilfield site but no formal records have been obtained by Felzien or the ISDAB which then prompted a survey to help aid in this confirmation.
The geotechnical report will be done before May 30 and signed/sealed by an engineer stating the new location of the bins is safe, secure and appropriate for the development and associated activities, including loading and unloading of bins as well as a detail report on how the base below each bin is to be prepared to ensure a secure and stable installation, consistent with the manufacturer’s recommendations and best practices.
The bins must be moved before August 31 as determined by the board.
Lastly, it was determined that a guard rail be placed between the bin yard and RR-145, that would extend the entire length of the development for roadside protection.
Agricultural buildings in the county are exempt from development permits, provided that they meet setback distances within the land use bylaw.
The development was constructed in 2014.
The development is approximately 37 feet from the centerline of RR-145.
At no time did the appellant or the development authority demonstrate that the appellant had ever possessed a development permit.
In response to questions from the Board, it was confirmed that at no previous time had a development permit been issued.
Twenty-six letters from neighbours indicating that there are no negative effects from the location of the grain bins were received.
“The Board does not find the letters particularly persuasive evidence” because the letter is a “form letter” which was prepared by Jason Felzien and not the neighbouring individuals themselves.
The individuals listed did not provide their own words and since the words were provided by the appellants, the Board does not find that to be particularly compelling evidence of these individuals’ views.
Further, the individuals did not sign the letters. They were annotated by Jason Felzien based on telephone calls.
Further, the Board noted that although there were approximately 26 people in attendance at the hearing, the only person from the 26 individuals who spoke was Dwayne Felzien, the father of the appellant, Jason Felzien.
Terri Huxley
ECA Review
