Glacier FarmMedia COVID-19 & the Farm

Quarry battle raises fears over municipal autonomy

The residents of Lilyfield worry the province’s desire for cheap aggregate will supersede their desire for peace and quiet

Rosser residents (left to right) Brynn Kaplen, Val Gough and Florence McCoy say they’re frustrated and angry that Lilyfield Quarry can appeal its application to the Municipal Board. Photo: Geralyn Wichers

It’s a sunflower field at the moment. Foot-high plants wave in the summer sun beneath “no trespassing” signs — a lot of signs for an ordinary farmer’s field.

“Live watch security,” they say.

Kitty-corner, Florence McCoy’s yard is quiet, but for singing birds and the odd car driving past.

She’s lived on that yard since the ’70s. Widowed now, she manages the yard as best she can, though not with as much patience as her late husband. The weeds are creeping onto the driveway.

Beneath the field — and probably beneath the yard — sits a ridge of limestone. For 10 years, McCoy and her neighbours say they’ve fought to keep it beneath the soil, to protect their water from contamination, their air from dust, and their quiet neighbourhood from the rumble of blasting and gravel trucks.

They thought they’d won. Time and time again the RM of Rosser struck down the application. Then the laws changed, and the fight began all over again.

Bill 19 – The Planning Amendment Act, became law in June 2018. The act allowed that, if an application for a conditional use for a large-scale quarry operation was denied, the local government’s decision could be appealed to a quasi-judicial body called the Municipal Board.

“It seems unfair,” McCoy said. “If our council turns it down, the applicant can go to the province and ask it and it can have some people who weren’t elected, they were appointed, and they can decide our fate.”

The residents of Lilyfield are up against the province’s plan for the Capital Region, and the Municipal Board will decide — quiet agricultural land for the few, or cheap aggregate for the many.

The Lilyfield site

What’s now a decade-long saga began in 2009 when then-landowner Heather Stewart applied to develop a quarry on the site. The RM of Rosser turned her down.

According to McCoy and nearby resident Brynn Kaplen, Stewart teamed up with Inland Aggregates and applied again.

“Thinking they would baffle us with their fancy presentations,” said Kaplen.

The residents rallied to object, and once again the RM denied the application.

Municipal records show that in 2015, Colleen Munro, owner of Hugh Munro Construction, bought the land.

That November, Munro’s company Lilyfield Quarry Inc., applied to build a quarry on the site.

When the application appeared before the council, 19 people expressed support, including Munro’s shop manager, Heather Stewart, and what appears to be seven members of Stewart’s family.

Thirty-six people objected to the quarry. Their reasons have remained fairly consistent.

In letters sent to council ahead of the November 2015 hearing, a resident wrote that “Rosser represents farming with its fertile fields and lush pastures… (I) support the farming aspect. That’s why I moved here.”

“I was here before any quarry was proposed,” another writes. “I chose this location due to its quiet and peaceful location.”

Another wrote that they already saw a lot of heavy traffic, and expected with trucks going up and down the road, the dust would only get worse. “We had to wash dust off pea pods from our garden before shelling them, and our windows in the house had to stay shut.”

A resident worried in their letter that dust would make their asthma worse and affect others with breathing issues.

Many cited danger to their wells and water. Wrote one, “There is an irrefutable acknowledgment by respected authorities that a serious contamination threat to our water supply would ensue… These are risks to our family’s well being (sic) that we do not want council to take.”

“It’s always been the same. We want to protect our water,” Kaplen told the Co-operator.

McCoy said when the quarry owners first drilled for core samples, some wells in the area turned black and some owners had to “shock” their wells to make them drinkable again. Her well was not affected.

The 2018 quarry application cites studies which say vibrations from blasting could cause fluctuations in water well levels, but these should stabilize after a few days. A 1997 study cited says, “Blasting does not cause wells to go dry or reduce water quantity available to a well.”

Munro expected to take an inventory of private wells to determine a baseline condition, and expected to establish a baseline of water quality, according to the 2018 application.

According to a hydrological investigation of the site, blasting has potential to negatively affect groundwater quality by increasing turbidity (cloudiness from suspended sediment or other matter).

It also cautions against refuelling on the quarry floor and recommends safe storage of fuel or oil because of risk of this seeping into the aquifer.

The application pledged to install an on-site observation well to be monitored and sampled quarterly. It also had plans in place to reduce blasting noise from and traffic-related dust.

The Manitoba Co-operator contacted Colleen Munro but she declined to be interviewed.

Municipal documents show Munro appeared before council again on Dec. 10. The application, along with an application to remove the topsoil from the site, was unanimously voted down.

At that point, Munro took the RM of Rosser and the South Interlake Planning District to court.

According to court documents, Munro and Lilyfield Quarry Inc. argued the applicable zoning bylaw was inconsistent with the development plan as it related to extraction of aggregate on the property, making the bylaw invalid.

Munro asked the court to quash parts of the bylaw that made a conditional use necessary for the quarry, to order the RM to amend the bylaw, and to forbid it from applying that zoning bylaw to the quarry.

However, Justice Deborah J. McCawley ruled in favour of the RM and planning district. In her decision, McCawley said the legislation was clear and was intended to protect resources and control development by allowing municipalities to create their own bylaws.

“Here the council of the municipality was empowered to accept or reject a proposed conditional use, the underlying policy being that the municipality understands and can be responsive to local conditions,” McCawley said.

Munro would go on to apply to the RM again in 2018 and host meetings to answer residents’ questions, but this application was denied.

Enter Bill 19

To some residents’ thinking, what happened next was tantamount to a government conspiracy against them.

In 2018, the province passed Bill 19 – The Planning Amendment Act (Improved Efficiency in Planning). Among other things, the act allows people applying for conditional uses related to building aggregate quarries or large-scale livestock operations to appeal to the Municipal Board if a board, council or planning commission denies their application.

The Manitoba Municipal Board is a tribunal comprising an appointed chair and vice-chair, and several part-time members. Its decisions aren’t subject to the direction of any government minister, MLA or other government official, according to the province’s website.

According to a provincial explainer, Bill 19’s purpose was to streamline regulatory processes and reduce the “administrative burden on municipalities and planning districts.”

About quarrying, it says, “The province fully funds or cost shares most major infrastructure projects in Manitoba and a significant factor in the cost of aggregate is the distance in which the material is hauled… it is of key importance in ensuring the availability of high-quality aggregate in areas where population growth is resulting in increasing demand.”

Chris Lorenc, president of the Manitoba Heavy Construction Association, essentially argued this point during consultations on the bill by the provincial Standing Committee on Social and Economic Development. He added that while quarrying is intrusive on the landscape, trucking gravel long distances also had its environmental impacts.

Charles Chappell, appearing on behalf of Munro, according to provincial documents, told the committee that allowing local governments to have final say on conditional uses was not in “provincial economic interest or a proper way to deal with conditional uses.”

He added that as local councils are easily swayed by the people who elected them, “NIMBY, not in my backyard, prevails over provincial concerns.”

Provincial planning

There’s some merit to that argument, said Paul Thomas, professor emeritus of political science at the University of Manitoba.

“The argument would be that the municipal governments are closest to the people. They’re the most democratic form of government. So there’s a kind of mythology about that,” said Thomas. “There’s a lot of belief in the sanctity of local government autonomy even though local democracy is not as healthy as we would like it to be.”

It’s hard to get people to run on local councils, said Thomas. There are often acclamations or low voter turnouts. They’re paid a “pittance” for their time, Thomas added.

Thomas said when it came to the livestock and hog barn portion of Bill 19, the pork industry feared that local environmentalists and activists were getting in the way of hog barn expansion by dominating hearings or taking steps to get elected in non-competitive municipal council races.

“We didn’t want local decision makers, who may be too subject to pressures from these activists, to have the final word so we’ll bump it up to the Municipal Board if you appeal to the Municipal Board,” Thomas said.

The close-knit nature of rural communities means that personal relationships and biases may also come into play.

“That’s one of the risks when it’s in these small communities when people know one another,” Thomas said. “You can develop personal animosity toward someone and you wonder at the council level whether you’re getting a fair hearing or whether your plans have been torpedoed by a councillor.”

Making all decisions locally also isn’t conducive to regional planning, said Thomas.

The RM of Rosser is part of the Capital Region, an area surrounding Winnipeg including 16 municipalities. Under the Capital Region Partnership Act, the region co-ordinates together for economic development and aspects of land use and infrastructure.

“Recognizing that city regions around the world have now become the main focal points for competition, for business, and for tourism and all sorts of other things,” Thomas said.

He added that the Winnipeg Capital Region needed to get its collective act together to not be left behind.

This includes planning to group industries together so high-quality agricultural land isn’t taken out of production, according to a 2019 report by Robert W. Murray.

A key portion of the Capital Region is CentrePort, “North America’s largest inland port,” according to its website.

The 20,000-acre section of industrial land, part of which is in the RM of Rosser, includes a rail park, the James Armstrong Richardson International Airport, and a trucking hub. It has a substantial industrial and agribusiness presence, and development such as a processing plant for peas and canola, is ongoing.

In support of Munro’s most recent application, Greg McKee of SMS Equipment cited the proximity of the Lilyfield site to CentrePort as a reason to support the quarry, saying it would have saved him money when building.

Co-ordinated planning means not everything can be decided at a parochial level, said Thomas.

One complaint Murray reported was that a lack of consistency across the region to how planning and development is delivered and a lack of defined common direction has encouraged municipalities to continue to act alone. This has created delays for private industries and economic development agencies, said Murray, as the discrepancies have caused substantial confusion.

Local autonomy

Stakeholders were also concerned about loss of local autonomy, wrote Murray, and when Bill 19 was under consultation, the Association of Manitoba Municipalities (AMM) objected to portions of it on those grounds.

“We believe municipalities are mature, responsible governments, accountable first and foremost to their citizens and electorate,” then AMM president Chris Goertzen told the Standing Committee on Social and Economic Development.

“The option to directly appeal to the Municipal Board undermines the decisions of local councils that know their communities best,” he added.

“We continue to see provincial legislation shift decision-making powers away from all elected councils to the provincially appointed Municipal Board,” said Ralph Groening, AMM president, in a statement emailed to the Co-operator. “These legislative changes undermine the decisions of local councils and ultimately erode municipal authority.”

This March, the Pallister government tabled Bill 48, the Planning Amendment and City of Winnipeg Charter Amendment Act. If enacted, the bill would allow further establishment of planning regions, and require municipalities in those regions to make development plans, secondary plans and zoning bylaws consistent with the regional planning bylaw.

It also expands the responsibilities of the Municipal Board, allowing people to appeal to the board on land use decisions made by a planning district or municipality, and to appeal if their application isn’t dealt with quickly enough.

In a March 23 report, CBC quoted Minister of Sustainable Development Rochelle Squires saying, “All this will allow for an opportunity for an applicant to appeal to the Municipal Board when there is a dispute. And it will also ensure that there is some timeliness. We’ve heard of applicants who have waited months, sometimes years, for an answer.

“Nothing in this legislation prevents or precludes the City of Winnipeg or other municipalities from having its internal processes for development and subdivisions and planning,” Squires added.

However, the RM of Tache passed a resolution asking AMM to lobby the province to review the bill before its passed, according to a June 11 report in The Carillon. The article said the RM of Springfield council passed a similar resolution.

The same report quoted Steinbach city councillor, Damian Penner, who called the bill “undemocratic.”

“We as municipal officials are the elected body and the voice for our citizens. We are the ones who live in the community, we are the ones who represent our community,” Penner said.

Getting a fair shake

Some Rosser residents fear the Municipal Board won’t give them a fair hearing, in part because Munro’s interests may align with the province’s needs.

Kaplen said they only received word of the hearing, then scheduled for February, a few days before it was supposed to happen. They were given the impression it was to be closed to the public.

She said the hearing was cancelled after residents objected. After the onset of the COVID-19 pandemic, the board proposed to do the hearing by Zoom said Kaplen. She and other residents around the quarry site have very poor internet access, Kaplen said. The hearing was cancelled again.

A provincial spokesperson did not confirm if or why the hearing was cancelled. No date has been set for the hearing, the spokesperson said. Meetings are open to the public.

Kaplen and McCoy said they fear the board won’t be objective.

“They’re supporters of (the Pallister government). So they’re not objective,” said Kaplen. “They’re toeing the party line.”

Board member Steve Lupky ran for the provincial Conservatives in 2011. Rick Borotsik was a Conservative MP from 1997 to 2004, and a Progressive Conservative MLA from 2007 to 2011.

Board chair Jeff Bereza, a former Portage la Prairie city councillor, has frequently shared social media posts from the provincial Conservatives to his personal Facebook and Twitter accounts.

Thomas said board members often change when the government changes, and friends of the party are often given seats. The NDP did the same, Thomas said.

It’s staff members, not the board itself, who provide expert information, he added.

“The fact that these board members have political affiliations doesn’t mean automatically that they don’t take their job seriously or they’re not able to consider the facts,” he said.

However, “There’s no way a board chaired by someone who comes from a Conservative background will be unaware of the government’s thinking on many of these issues,” he added.

The Municipal Board is actually an attempt by the province to get an arm’s length from such decisions, Thomas said. Before the board existed, disputes would be given to the department of municipal affairs and end up on the desk of a minister. The idea was that if such decisions were taken from the hands of politicians, people might trust them more.

It hasn’t entirely worked.

“We live in a suspicious era,” Thomas said. “We don’t trust politicians and to a lesser extent we don’t trust public servants.”

Meanwhile, Kaplen said she’s seen equipment parked on the land and pointed to a wide, unplanted strip down an edge of the sunflower field. That’s where the quarry berm will go, she said.

The unplanted strip corresponds to the berm on the quarry map in the 2018 application.

It’s not illegal, she said, but it’s upsetting. “They’re just pushing, pushing, pushing.

“They’re operating as if they’re building this quarry… it’s a foregone conclusion,” she said.

McCoy took heart in the fact that this is not the first company the residents have sent packing.

“Somebody said, ahh, you’ll never win against them (Inland Aggregates). Well we did. But now it’s come to this.”

COPA Medallion COPA finalist in 2012, 2014 and 2015.
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