Utility and Review Board upholds municipal watercourse set back decision in Nova Scotia

The Nova Scotia Mink Breeders Association (the “Association”) and various farmers: Kevin Hamilton, Heather King, William Brewer, Douglas Hurlbert, Carmen Comeau, Betty Reeves, and Walter Doucette, (“collectively referred to as “individual farmers”) appealed from a decision of Council for the Municipality of the District of Yarmouth (“Yarmouth” or “Municipality”) which amended Part 23, s. 5(c) of the Land Use By-law (“LUB”) to increase the required minimum setback from 328 to 500 feet from any off-site waterwell or any watercourse or waterbody (“amended LUB”). Yarmouth’s Municipal Planning Strategy (“MPS”) includes policies to protect water quality, encourage agriculture, and determine the minimum setbacks from water bodies for fox, fur, hog and fowl operations. The appeals of the Appellants are made pursuant to s. 250(1)(a) of the Municipal Government Act, S.N.S. 1998, c. 18 as amended (the “MGA”).  The sole issue in the appeal was: Does Council’s decision to amend the LUB reasonably carry out the intent of Yarmouth’s MPS?

The individual farmers filed an appeal with the Nova Scotia Utility and Review Board on November 16, 2009 alleging the by-law amendment was contrary to the intent of all by-laws requiring the encouragement of agriculture. Furthermore, they alleged the setbacks discourage agriculture and reduced the value of their farms. On November 17, 2009, the Association filed an appeal with the Board alleging the by-law amendment does not reasonably carry out the intent of the MPS. Specifically, it stated that the amendment does not carry out the intent of policy H-7 which is to encourage any endeavor to promote the growth of agriculture. Furthermore, it claimed the setback is arbitrary in nature and not based on solid scientific evidence. On November 17, 2009, the Nova Scotia Federation of Agriculture filed an appeal with the Board, on the same grounds as the Association, which it later withdrew.

The Board dismissed the appeals, finding:

The fact that at sometime in the future the Province may develop regulations that better manage the fur industry in Nova Scotia does not prohibit the Municipality from taking what action it can within its By-Laws to implement its MPS for its citizens. Whether it’s the most effective means of addressing the problem is not for the Board to determine.  From the evidence before the Board, Council sought to strike a balance between encouraging farming and the preservation of its lakes and watercourses taking into consideration the blue green algae, its toxins and related health issues. Having considered both issues and making a decision of 500 feet, the Board finds that in the circumstances of this case, Council has reasonably carried out the intent of the MPS.

Read the decision at: Re: Nova Scotia Mink Breeders Association.