By Trevor Busch
The Town of Taber is headed back to the drawing board on cannabis land use amendments after town council defeated the bylaw at second reading following a tie 3-3 vote.
On May 14, council had passed first reading of Cannabis Land Use Amendment Bylaw 13-2018, which would have made cannabis-related uses discretionary in certain districts, requiring a development permit that would be granted or refused at the discretion of the Municipal Planning Commission on a case-by-case basis.
Any potential approval would take into account land use impacts such as parking and traffic, appropriateness of location, compatibility and impact on adjacent development, and “sound planning principles.” Notification would be required for landowners within 100 metres. Decisions of the Municipal Planning Commission may also be appealed.
This approach would allow for a lower level of council control, as the decision making authority would be placed with the Municipal Planning Commission, and potentially the Subdivision and Appeals Board.
Administration describes this as a “more streamlined process that provides direction to people looking to start a business, and a process for appeal.”
Referencing a letter that had been submitted from Alberta Health Services which recommended enhanced setbacks and other restrictions, at the July 16 regular meeting Coun. Joe Strojwas canvassed council on their comfort level with the bylaw that had been presented for approval.
“Before we do the next two readings, are we set with this, council? Should we take a look at any more restrictions on this? Should we leave it as it is? Just because of all the recommendations in this Alberta Health Services letter, we need to do it today if we’re going to do it, or leave it as it is.”
Coun. Louie Tams was in favour of pushing forward with Bylaw 13-2018 as presented.
“I understand your concerns, Councillor Strojwas, and I very much agree with you, and yet in the same breath we’ve looked at this and looked at this. I was one of the ones that said let’s not have second and third reading, but with all the information that’s there I’m prepared to go with second and third, and let it happen. We can keep looking at it, and keep picking at it, and I think once this gets into place it’s just going to rear its ugly head more and more. We’re not done with this issue — we’re far from done — and frankly the provincial government and federal government have given lousy leadership on this whole thing and left it in the hands of municipalities. I believe what we have in front of us is a good piece of bylaw, and I think at some point we have to say yes or no.”
In October 2017, council passed third reading of a land-use bylaw amendment defining cannabis and cannabis-related uses as well as revising existing definitions to clearly exclude cannabis from bars, retail stores, industrial uses, and home-based businesses.
In January 2018, council had originally ordered that cannabis-related uses would only be allowed within a Direct Control District, subject to the exclusive approval of council. This was later removed following a 4-2 split vote on May 14.
In March, council had also directed administration to include separation distances of 100 metres from any school and hospital uses.
A public hearing on the bylaw was held on June 25. One of the key decisions council and administration have been working on revolves around retail sales of recreational cannabis and where shops will be permitted in town boundaries.
“Administration is proposing for council’s direction that all uses related to cannabis sales that are included under our land use bylaw are identified as discretionary uses within the downtown zone, and comprehensive commercial,” said planning director Phyllis Monks.
At the June 25 regular meeting, council had requested clarification regarding the personal grow aspects of the new federal legislation, and a legal opinion was obtained by administration.
In a legal brief prepared by MLT Aikins, it was indicated that there is some potential that the town could move to restrict or prohibit the growing of cannabis plants in a residential home if the court is satisfied that the underlying purpose of the town’s bylaw is to achieve a “valid municipal purpose.” However, the town would have to provide compelling evidence that demonstrates how growing a limited number of cannabis plants would pose a unique risk to the safety, health and welfare of people or property that other plants do not.
“If the town decides to enact a bylaw that restricts or prohibits the growing of cannabis plants at a private residence, the town must ensure that it can prove that the bylaw was enacted for a valid municipal purpose and is not effectively an attempt by the town to regulate criminal law,” concludes the brief.
Monks argued the town could be stepping into a jurisdictional battleground if it attempted to restrict or prohibit personal growing of cannabis as permitted under federal legislation without ample legal ammunition to back up its decision.
“I was advised that they have not heard of anyone doing it to date, and that you could perhaps attempt to make it a use requiring a development permit under the land use bylaw, but finding a legitimate legal rationale for doing that would be difficult, and enforcing it would be very challenging. Quebec and Manitoba have both used their provincial legislation to prevent personal grow in homes — other than for medical use — but Alberta has not done that, so legally it would be challenging federal jurisdiction.”
Strojwas continued to express trepidation about the implications of the bylaw amendments without due consideration given to AHS’s recommendations, which include buffers between stores, 300 to 500 metre setbacks, distance restrictions around churches and daycares, retail clustering and the potential for a cap on the number of retail locations.
“Just for your information, Medicine Hat is struggling with this this evening, other communities are struggling with the same things that we are, I just brought it up so that if we proceed down this road, is this set how it’s going to be? Once we give this to administration, they’re going to run with it, because there’s applications out there that are going to come forth. Do we want a proliferation of cannabis retail facilities? Side by each? Around liquor stores? Are we okay with that? Let’s think about this really hard. I would prefer to see 100 metre distances between locations. That would be one every block. Maybe we need to go 300 metres, every three blocks. We don’t know how many of these are going to spark up in town. Do we need one on every street corner?”
Coun. Mark Garner also expressed caution in moving forward without consideration of the AHS recommendations.
“After looking at Alberta Health Services, I think they make some great legitimate points when they say the implementation of a 300-500 metre minimum distance restriction between cannabis retail outlets, I think there’s wisdom in that. They also go on to say the implementation of a 300 metre distance between cannabis stores and schools, daycares and community centres, I don’t think that’s unreasonable.”
Coun. Jack Brewin was nonplussed about the prospect of locating a cannabis retail location next to a liquor store.
“I’m not really sure why we’re concerned about next to liquor stores, because liquor is a drug as well.”
Brewin went on to suggest that market forces will dictate the survival and location of multiple cannabis retail outlets in the community, not unlike any other industry established in a capitalist system.
“I do agree with multiple locations close to each other, I don’t think we have to legislate that, I think like Councillor Brewin said, competition will take care of it,” said Coun. Carly Firth. “Three in one block? We have two liquor stores right around the corner from each other, we’ll see if they both survive. As far as daycares centers go, our main daycare is located in a residential area. I’m less concerned about the retail locations — the distance — and more concerned about our Community Standards Bylaw and the actual use of cannabis surrounding daycare centres or playgrounds.”
Following discussion, council voted 3-3 to defeat Bylaw 13-2018 at second reading. Mayor Andrew Prokop and Coun.(s) Strojwas and Garner voted in opposition. Coun. Garth Bekkering was absent.
CAO Cory Armfelt indicated that following defeat of the bylaw, administration would start from scratch on the preparation of a new bylaw to be presented to town council for first reading at their Aug. 20 regular meeting.