Railways, Planning and Development

The Province of Saskatchewan is currently reviewing the Planning and Development Act, 2007, to amend a number of items, but one specifically in regards to future planning, development and subdivision nearby to existing active and abandoned railway lines. So what possible implications could this have on ratepayers, developers, contractors and municipalities?  

On July 6, 2013, at 1:15 PM, an unattended, 74-car freight train that was transporting crude oil derailed in downtown Lac-Megantic, Quebec, and tragically killed 47 residents. This accident enforced the need of a country-wide guideline for New Development in Proximity to Railway Operations, which is a 122-page publication put forth by the Federation of Canadian Municipalities and the Railway Association of Canada. This report recommends that “municipalities should take a proactive approach to identifying and planning for potential conflicts between rail operations and new developments in proximity to railway corridors." The intent of the document is to promote awareness of safety issues of building around railways for development (particularly residential), consistency of country-wide standards, a new approval process for development near railways, and increase the quality of life by reducing incompatibility nearby railway property.  

If the Province of Saskatchewan adopts this amendment to the Act, then this would be applicable to all railway lines within the Province, regardless of whether the railway line is active or discontinued.  My understanding is that the Information Services Corporation parcel classification of “rail” is what would determine the application of the railway regulations.  So for those areas that the railway has been removed, but is still owned by a railway company like CN, the regulations would still be applicable.  

New development could be required to have additional setbacks from existing railways lines, anywhere between 15 metres to 300 metres depending on the type of development. This setback would be from the rail property line to the main structure wall, but would leave the remainder of the property to be used for roads and alleys, backyards and outdoor recreational spaces, gazebos, garages and vehicle parking.  The report made no mention of financial compensation of the subdivision and development implications the setbacks cause developers. 

Developers may also be required to construct additional security fencing, engineered safety barriers like earthen berms up to 15 metres wide and 3 metres high, crash berms and crash wallsalong rail property lines. The construction of these berms would be at the developer’s expense and all improvement taxes would be paid by the landowner. The width and height of the berms are dependent on topography and the setback distance of the future structures on site, and a stronger berm or crash wall could reduce the building setback. The report did mention that maintenance of fencing and berms may be completed by the railway company to ensure retention of appropriate safety standards if improvement taxation is waived. 

Contractors of new building sites may be required to increase foundation strength for vibration mitigation and use stronger building materials for buildings walls facing railway lines in case of derailment. Additional sound-absorbing materials, structural wall spacing, and door and window placement should be considered to combat noise to occupants, and house designs should have bedrooms further away from the railway side to reduce noise. These types of changes may require architectural and engineered construction plans, which will increase construction costs. Also developers are encouraged to communicate directly with railway companies about landscaping changes for surface and storm water drainage patterns to prevent adverse effects onto rail property. 

Municipalities may be required to have alternative road standards for railway crossings, which may include upgrades for existing railway crossings and site lines. Amendments to planning documents would be required to enforce the building setbacks, warning sign installation, and developer responsibilities to complete impact and vibration studies, or viability assessments for development near railways, and then construct the mitigation techniques at their cost.  

This is just a snapshot of the 2013 guideline, and individuals are encouraged to read the document, or contact their local Ministry of Government Relations – Community Planning Branch for more information.

What should a Zoning Bylaw Do?

A discussion that has occurred with many municipalities over the past few months is determining exactly what a Zoning Bylaw should do.  What is the general content associated with it, and is there any variability in what it can include?

In the Planning and Development Act, 2007 there is one section that describes what a ZB “shall” provide, and another section that describes what a ZB “may” provide.  These two words are very important within the planning and development world.  The word “shall” is committal, which means that it is mandatory that these topics be provided within the ZB.  For example, the Development Officer shall require the submission of a Development Permit Application for the construction of structures or buildings over 100 square feet. The word “may” is not binding, which means that it is optional that these topics be included within the ZB, and subsequently, when this word is used within the ZB, it means that discretion is used to determine whether the requirement is requested.  For example, Council may attach approval conditions to a development permit application to receive the go-ahead on the project. 

To first discuss what must be included within a ZB the reader of the Act can turn to section 49, which outlines contents that are mandatory to include.  If a ZB is to be written, then there must be creation of zoning districts that list what are permitted uses within each of the districts.  Districts are created to regulate land uses, so uses and associated regulations are necessary to ensure that land use is managed effectively.  Council must also clearly state who the Development Officer is, which typically this just ends up being the Administrator, unless the municipality states otherwise.  The document must outline the procedures for development permits, such as when they are required, processing and notification, issuance and relevant validity periods for specific types of permits.  The ZB must discuss minor variances to building setbacks, and the creation of a Development Appeals Board to hear appeals for enforcement completed by the municipality.  Finally, the ZB is to provide for any other matter that may be necessary to regulate and control the issuance of development permits as Council deems necessary. 

When these documents are reviewed by the Province of Saskatchewan, these items are the must-haves to be approved.  If these fundamental components are not provided for, then the document will be rejected and the municipality and their planning consultant will have to rescind readings and start over including the public notification for ratepayers. 

Optional content that may be included within a ZB is far longer, but these items may not be applicable to every municipality.  The Act governs all municipalities within the Province of Saskatchewan, but large urbans like North Battleford, Meadow Lake, Saskatoon, and Regina have the Cities Act that give them approving authority, which gives them more decision-making power within their municipal boundaries.  The Northern Administration District, areas like La Loche, La Ronge, Black Lake and Sandy Bay have the Northern Municipalities Act, which also has more specific requirements in the northern part of the province.

The additional content include items like: discretionary uses and their associated evaluation criteria and regulations; specific lot regulations like site coverage, building heights and sizes, and landscaping; parking, storage and loading requirements; hazardous land development (i.e., slope instability or flood-prone areas) controls; lighting and sound pollution; and performance bonds, levies, and servicing agreement requirements for development and subdivision.  As you can see some of these items are not an issue within some low-development rural municipalities, which is why they listed as optional in the Act. 

Essentially, ZB’s can be as simple or complicated as the municipality wants, but depending on how you want to control development some of those optional contents become essential for implementation.  Just keep in mind there are only 11 items that a ZB must have, and that is all municipalities need to adopt if they want to implement a ZB alongside an Official Community Plan. 

Official Community Plans, a Map for the Future

The major push for communities these days is to undergo the adoption of an Official Community Plan, or a long range planning document for a community.  A constant question of Administrators and Councillors are, what exactly is an Official Community Plan?

According to section 31 of the Planning and Development Act, 2017, the purpose of an Official Community Plan is to provide a comprehensive policy framework to guide the physical, environmental, economic, social and cultural development of the municipality or any part of the municipality.  What this means is, it is a policy document that guides Administration and Council to implement holistic growth.  Planning does not occur in isolation and various factors need to be taken into consideration when planning for a community’s future.  Regardless of whether the community is an urban or rural municipality, regional park or First Nation, holistic planning is important to ensure that all factors are considered before policies are written that guides future land use planning and development.  For First Nations, these types of documents include Community Development Plans, or Comprehensive Community Plans, and can be implemented through the creation of a Capital Works Plans.

The Province of Saskatchewan adopted 14 Statements of Provincial Interest in 2012, which requires that when any professional planner writes a municipality’s OCP, that certain are taken into consideration before the province will approve the document.  Some of the factors include: residential development, economic development, the environment and shorelines, public safety, transportation, safe drinking water, agriculture, mineral resource exploration and extraction and many others.  While this provincial policy ensures that the province gets first dibs on the items that they feel is most important (namely mineral resource exploration and extraction, highways, and aggregates), the policy does force Administrators and Councillors to focus on the entire community and not just on one or two areas. 

There are good example that illustrates what this translates to at the local level.  One of my Councils was debating the requirements of sidewalks, and whether it was a mandatory construction policy they wanted to include within their future plan.  One side argued about the increased cost of installation and maintenance, and the other side argued about resident accessibility and better personal health as more people would be able to walk around the community instead of being forced to drive.  In this community, the sidewalks and walking path was designed to go by a senior’s centre and a daycare, which provided a safe place for these vulnerable demographics to walk, instead of being forced to walk on the street and content with vehicular traffic. 

Jane Jacobs, who is considered to be the founder of modern planning in North America, evaluated her communities’ liveability by stating that people often feel safer when surrounded by other people, and more eyes on the street increases public safety.  This was proven by another of my communities that constructed a walking path from the main residential community into the countryside to an area of special significance because it was being vandalized and frequented by social parties.  The walking trail attracted every day residents to that location, and the more eyes on the site reduced vandalism completely at that location, which meant the history was protected.  Downtown Regina also implemented this policy by creating a pedestrian street where restaurants and bars are now allowed to have outdoor patios extending into the pedestrian street, where patrons can look out onto the street, which helps to make that area of downtown feel safer. 

Who knew sidewalks and walking paths were so complicated? But this example alone has considered a number of factors: transportation, public safety, residential development, health care, economic development and tourism.  While sidewalks may not be applicable to your community, your plan should be comprehensive enough to navigate through the daily activities that occur in your community. 

When the planning consultants are writing for your community’s future plan, they should be considering many factors for all land use and development.  It’s a complex task, especially when some communities have a myriad of land uses to consider like residential development, agriculture, lakes, and oil and gas exploration.  Nonetheless, your hired planning consultants should create a document that incorporates all these factors and provide you with policies that your Council deems acceptable. 

Planning history a tool in defending actions

Rarely in Saskatchewan does a municipality not have some acting bylaw for land use regulation and development. This could be a basic planning statement or official community plan, zoning bylaw or simply municipal bylaws that regulate setbacks or shipping containers. So what should a municipality do with these obsolete bylaws once a new official community plan and zoning bylaw has been written?

One of the benefits of adopting an official community plan and zoning bylaw for a municipality is the implementation of organized and planned land use development and regulation, and the bylaws being located in mostly one document. This allows municipalities the option to control what they want to see within the municipality to some extent, and make sure any uncertain development is carefully considered before rendering a decision.

In many of my municipalities Administrators have used both the Zoning Bylaw and municipal bylaws to assist in the control of land use and development. This is because only items authorized by the Planning and Development Act, 2007 can be put into a zoning bylaw, and it may be more appropriate to adopt a municipal bylaw for additional regulations. Examples where a municipality has adopted additional bylaws over and above a zoning bylaw often revolves around the requirement of additional fees. For example, all my municipalities have regulations for campgrounds, but one municipality also has a municipal bylaw that charges a per site fee to assist in compensating for the increased usage of municipal services for road infrastructure and lagoon impact that the campground users provide that cannot be reclaimed through taxes.

It should be mentioned that if a municipality is going to adopt a fee bylaw, all fees should be defensible. This means the municipality must have justified the numbers with a report completed by a qualified professional showing the numbers are appropriate. Should any of these documents become obsolete in the future through the adoption of a new bylaw or an updated version, the municipality is to rescind these bylaws. The original bylaw document should be retained in the municipal office.

These documents are not to be destroyed, and it shows the history of the municipality, which may come in handy in the future when the municipality has to defend itself. In every Saskatchewan Municipal Board hearing I’ve attended, the municipality has had to prove consistency and objectivity in how they may have implemented planning and development. In one case, I had to review all previous planning documents back to the 1980s to determine whether the individual would have needed to submit a development permit for a construction project.

In this example, the municipality had undergone two major amalgamations and the planning documentation from the previous municipalities had to be reviewed for requirements at the time of construction. The SMB asked for copies of all the documentation for their records to make a decision. Having this documentation and history is also important at the local level when describing regulations to ratepayers. Being able to explain to ratepayers when the regulations were first adopted, why, and what this means to them helps to remove confusion and sometimes frustration. This has been helpful when there are zoning amendments for regulations or changes to fees for

The final thing to consider for having this documentation and history is that it shows the consistency of council to ratepayers, and also to future council and administration. Municipal elections are every four years, so having this documented history establishes the policies that council should commit to and helps explain why certain regulations or bylaws are in place. In my experience, having all this documentation of the reasoning behind a policy or regulation helps to keep a municipality running smoothly and organized in the future. 

Website valuable tool in community planning

When it comes to public notification for communities, one of the best options
to get the information quickly out to residents, or ratepayers, is through the use of a website. Many individuals want to find essential information about the community online,
and increased awareness through websites is an effective tool. However, in regards to planning, how much information is too much? 

When an individual is wanting to undergo a subdivision application, most Saskatchewan Land Surveyors suggest first talking to the municipality, regional board, or community.
They are likely to suggest that you review the community’s website for any planning documents, such as official community plans, zoning bylaws and capital works plans. They don’t want to be held responsible for not informing their clients of potential
fees with subdividing, and the landowner is the person who will be paying fees, so they should understand potential costs.

Similarly, for development, applicants want to know what is allowed before substantial
time and money is spent on construction. The use of municipal websites is one of the most effective ways to distribute essential information on policies and regulations of a community and reduces the workload of administration, as people complete the preliminary research online themselves. 

One of the struggles that communities have is determining how to provide their official community plan and zoning bylaws online without having to upload every single amendment relating to their documents. One option is through the creation of a bylaw consolidation, which combines all amendments into one non-editable formatted document. If a community uses a consolidation, ensure there is a disclaimer on the front page of the document that states that the document is only for convenience of reference and the original bylaws should be consulted for accuracy. When writing this document, it should be completed slowly and exactly the same as the original approved by the Minister, typos and all. One of my municipalities had an error in this document,
through the inclusion of one extra word, and it completely changed the intent of the regulation and caused havoc within local planning and development. Nonetheless, consolidations are a effective tool when accurate. 

The ability for applicants to get applicable permits and associated information off a community website is helpful and convenient. With the online world, these documents
can be downloaded, edited and submitted back to the community electronically with all appropriate information (i.e., building construction plans, site plans, etc.), which speeds
up the permit process. Recent feedback encourages communities to include fees and estimated costs for applicants. If the community is unable to control the costs, say for the hiring of an SLS to complete a Real Property Surveyor’s Report, or building inspection
fees, then a disclaimer should be placed on the website that prices may vary, and that it is the applicant’s responsibility to research associated costs of development. 

Similarly, regarding subdivision costs like offsite fees, it is important that the community include disclaimers that costs are subject to change without notice. I attended a recent
Saskatchewan Municipal Board appeal where the applicant began the subdivision process with the understanding that the off-site fees were a certain cost, and within the eight months it took to complete the subdivision, the fees increased. While these types
of appeals may continue, at least the community is able to state to the appeal board that they have tried to make applicants aware of potential cost changes, but it is the applicant’s responsibility to touch base with the community to confirm costs in writing.

The use of a website is also incredibly useful for public notifications for discretionary use development permit and/or subdivision applications, or even simple items like fire bans.
Many of my communities are seeing an influx of ratepayers that live abroad and don’t receive the local newspaper that the province requires as the mandatory public notification for amendments. If the individual wants more information, they can contact
their community’s administration office. More information is usually better when it comes to community websites, but it is important that the information is accurate and updated. In today’s age, there are many opportunities for the dispersal of information, and it is strongly encouraged that communities explore how best to communicate with their ratepayers.

Using Statistics to Plan for Population Changes

The province of Saskatchewan, many urban municipalities, and First Nation communities have seen unprecedented growth over the past years, while some rural areas are experiencing population decline.  There are some of useful tools communities can use to understand how local population change and what it means for the community?

The first thing a community should evaluate is population trends, which involves looking at how Statistics Canada shows population change over the past few years.  For example, annual population changes for the Province of Saskatchewan is 1.2%, many urban and rural municipalities in Northwest Saskatchewan is about 2-3%, and many First Nations is about 4-6%.  However, some rural municipalities have seen population numbers stagnate or in some cases decline as people move away from rural areas into cities.  It is important to evaluate the population changes over a greater period of five (5) years because there can be anomalies in statistical data, such as changes in data collection methods, cancellation of the Census, or alteration of the types of questions that may be asked by Statistics Canada. 

Population trend analysis can include specific analysis of demographic ages living in the community.  The average age of the population will influence where Council and Administration focus available funding and services for local residences.  So, if the population is young, then Council and Administration need to consider more policies and funding around education, recreational spaces, and affordable housing.  Alternatively, if the average demographic are seniors, then policies could be tailored that accommodate the downsizing of retired farmers into urban areas, and eventually into assisted care facilities, etc. 

Once a community knows their average population change rate, the statistics can then be expanded to estimate population projections moving forward into the future.  One of the communities I’m working with has a population of approximately 3,400 people, and a population growth rate of about 3-4% per year.  This means that by the year 2020, the community is projected to have a population of approximately 4000 people, and in 2024 about 4600 people, and by 2028 about 5400 people.  With this in mind, Council and Administration need to start planning for this population growth and the implications on community’s infrastructure, such as roads, landfill or transfer sites, lagoons, water treatment facilities, schools, housing, administration staff to assist the growing population, and so on.  Alternatively, if the population is declining, then the policies adopted need to evaluate a sustainable way of reducing the services provided to residents.

Most communities aim to have a growing population because this usually diversifies the local tax base, and encourages community sustainability into the future.  The most impacted area for population increases is on housing, which are largely dependent on the average household size within a community.  Many of the municipalities in Northwest Saskatchewan have an average household size of 2-3 people.  According to the 2011 Census, both the Canadian and Saskatchewan average household size is approximately 2-3 people.  Interestingly, the average household size within many First Nation communities is between 6-8 people, and can be as high as 11 people per house.  The evaluation of housing projections become very important because with a population growth of 4-6% a community needs to evaluate how many new houses are required to accommodate a growing population, especially if there is a chronic overcrowding issue of 6 or more people per house.  If a community is experiencing population decline, and houses are being abandoned, the Council should consider policies for the appropriate decommissioning of wells to ensure source water protection and the slow removal of derelict buildings that may create safety hazards. 

Planning for a community’s future is important, and statistics are a valuable tool that can be used to evaluate how change and plan accordingly.  The free Census information provided by Statistics Canada provides fantastic insight into a community’s history and potential future.  Combine these statistics with a plan to accommodate change, and Council and Administration will be far better prepared to deal with any future challenges that may arise.

The Expense of Planning

Within the municipal world there is a delicate balance between time and money.  Hiring professional planners to assist Administration about planning-related topics is not free, so how does a municipality encourage planned development, but also keep that bottom line in mind?

Municipal Administrators have a difficult job running a municipality, facilitating infrastructure maintenance, dealing with ratepayer concerns, balancing budgets, organizing Councils, and then be required to drop everything and review a subdivision or a development permit application within a timely fashion for the developer.  The knowledge expectation of Administrator is also expanding, as often they are expected to provide insight to Council into engineering for roads and drainage, and understand the complete legislation of the Municipalities Act, and the Planning and Development Act.  This is tough job for the many one-person offices in rural Saskatchewan.

Fortunately, section 51 of the PDA allows a municipality to set permit rates for the expense of reviewing development to cover Administration time, and Council time if necessary.  Currently the going rate for municipalities is to charge $100 for permitted uses, and $200 for discretionary uses, but there is a value range throughout the area.  The municipality should have a Development Permit Application fee rationale that defends the permit rates, because the rates are not meant to be a revenue generator, but to cover the basic costs of reviewing the application.

When it comes to subdivision applications from Community Planning, section 172 of the PDA allows a municipality to request the developer sign a servicing agreement to cover some municipal expenses associated with the costs of reviewing the subdivision, among other costs, such as infrastructure construction and upgrades.  The option of asking for a servicing agreement is always available, and is strongly encouraged by professional planners.  It’s an effective tool that allows the municipality to participate in planned development, assist Administration through this time, but only on a need-only basis as the subdivisions arrive. 

Some municipalities have taken this one step further, and adopted professional planning service policies to state what amount of costs will be paid, and when, by a ratepayer that is incurred when accessing the services associated with the municipality.  Some of this stems from the concern that the subdivision may never be completed by the developer, at which point the municipality may not be able to bill those costs back to the ratepayer for the professional services through the requirement of a servicing agreement.  For example, some policies state that all costs associated with the professional services will be back to the ratepayer in a timely fashion (i.e., on a monthly basis).  This option ensures that the municipality, which may be on a thin budget, participates in planned development, but at the developers cost.

Alternatively, a municipality may assume payment up to a certain dollar amount in an attempt to encourage proper planning and development, but keep developers concise and on track with their dealings with the professional.  This option recognizes that contact between the developer and the planner will create a better submission to the municipality and reduce time and headaches at a later date as both parties pay for services. 

Finally, some municipalities don’t charge planning costs to the developer because it is viewed as a cost saving initiative.  The planner is assisting by taking some of the pressure off Administration so they can complete other tasks.  This option shows that the municipality is open for planned development, and the municipality will be “paid back” through taxation as subdivisions increase the number of properties that can be taxed, and hopefully the future improvements constructed upon the subdivision.

Any of these options are effective, which assist municipalities in achieving planned development and take some of the workload off an already-taxed Administrator in an affordable fashion. 

Agricultural Development and Zoning

When it comes to land use planning and development, often people think that this only applies to urban settings where lot sizes are small, and residential or commercial development is dense, or at the lake.  When a rural municipality undertakes the writing of a new Official Community Plan and Zoning Bylaw, the Ministry of Agriculture demands that policies and regulations be included to protect agricultural lands, so what does this include?

Reviewing an RM’s OCP recently included the standard agricultural protection policies, such as the RM shall protect prime agricultural lands from incompatible development, and the RM shall encourage economic stability by encouraging agricultural operations and economic diversification through the promotion of value-added agribusiness.  The policies that Council adopts within their OCP is critical in guiding them through future decision-making.  If the Municipal Council has included these types of policies in their OCP, then they must have regulations within the Zoning Bylaw to implement the policies. 

There are several ways that the protection of Agricultural lands can be accommodated through an RM’s Zoning Bylaw.  First, the RM can limit the number of non-farm residential acreages allowed to be subdivided within each quarter section.  The inclusion of the words “non-farm residential” is important, because it differentiates regulations between true farm residential, estate or succession farm planning subdivisions, and non-farm residential acreages.  The non-farm residential acreages can be limited by: density, say two (2) residential sites per quarter section; or by area, a maximum of 40 acres can be subdivided per quarter section for non-farm residential development; or by density and location by saying, a maximum of two (2) contiguous residential sites per quarter, which means the non-farm acreages must be located side-by-side.  These types of regulations ensure that the amount of agricultural land removed from cultivation or operation is minimized within each quarter section. 

Another way that agricultural lands can be retained for agricultural purposes is to limit the types of alternative uses allowed within the Agriculture District.  The encouraged uses within the district are those only that are compatible with agricultural operations, such as livestock operations, crop farming, mineral exploration and extraction, etc.  Any land uses that are not compatible with these types of development can be restricted.  The theory behind this regulation is to ensure that agricultural operations and agri-business take preference within the Agriculture District, and don’t impede on the operations ability to grow, diversify, or continue to operate.  For example, if the RM has numerous livestock operations, the allowance of multiple residential parcels per quarter section may hinder those operations from expanding their businesses, and may inadvertently discourage value-added agribusiness.

Many Zoning Bylaws also include separation distances from non-compatible development, and it is important that this inclusion is given great thought before being adopted by Council.  Separation distances often revolve around residential acreages, and it may say that no intensive agricultural operations can be within a certain distance of this acreage.  If this buffer around the acreage is large (upwards of 800 metres or more), it may actually prevent any existing operation from being able to expand because it is too close to an existing residence.  Some bylaws include co-existence agreement clauses, which state that if all parties agree then the operation can expand or locate within a certain area, but this still heavily favours residential development over agricultural operations.  It is important that Agricultural Districts are protected for agricultural operations first, and acreages secondary, if this is what Council wants. 

Unfortunately, the protection of agricultural lands through the adoption of an OCP and Zoning Bylaw comes with a few negative effects, such as the requirement for submitting permits for certain land uses.  I recognize that this statement makes most farmers and agricultural operators cringe when they consider the requirement to ask for the RM’s permission to do what they want on their land; however, if these planning documents are written correctly, and Council has a high priority of preserving agricultural lands and operations, then the majority of land uses typical for agricultural operations should be listed as permitted uses, and likely will not require the submission of a permit. 

NIMBY-ISM: “Not in my backyard”

Within the last week, several of my municipal Councils throughout Northwest Saskatchewan were faced with a subdivision application where the nearby ratepayers have vocalized substantial objections.  Should, or could, a municipality deny an application just because the neighbours don’t like the application?  I even had a ratepayer call this week and ask, “how can Council even consider this if all the neighbours are in 100% objection to it?”

In my opinion, this is the hardest consideration that Council must make when evaluating subdivisions.  The struggle results from Council trying to balance the interests of all the parties involved, which is their elected position to do.  They must consider the perspectives of the ratepayers who elected them, the applicant’s proposal, and they must also try and foresee how the municipality will be sustainable in the future, whether that be environmentally, economically, or with municipal infrastructure in mind.  A strength of the current municipal governance system is the variety of opinions available.  One Councillor may side with the neighbours to protect what is existing within the community, but another Councillor’s may side with the applicant and want to diversify the current situation.  This dialogue is what makes decisions happen.

Simply, yes, a municipal Council could deny a discretionary use application simply because the neighbours don’t want the application.  But is this a good enough reason to deny the application?  Possibly, but perhaps not.  Unfortunately, I have had situations where a Developer has appealed the denial of a subdivision application to the Saskatchewan Municipal Board because they didn’t feel that this was a good enough reason to deny an application… and in some cases the SMB agreed with the Developer.  So where does this leave the municipality and the neighbours that object? 

One of the greatest inclusions within recent planning documents is the incorporation of “evaluation criteria” that assist Council’s in making their decisions.  These criteria are qualitative questions that are asked to get a feel for Council’s position on the application.  Questions can include: impacts to adjacent landowners, proximity to non-compatible developments, impacts to the environment, and/or consideration of specific types of economies that Council is wanting to see within the municipality, etc.  These types of questions usually can’t be answered with a simple “yes” or “no”, but with many shades of grey.  It is these shades of grey that Council are able to get a feel for each other’s positions on the decision-making spectrum, and it assists them in making the best decision possible.  A wise senior planner told me once that this ‘best decision’ likely results in everyone walking away from the table a little unhappy, because everyone had to compromise to achieve results.

It should be mentioned that the inclusion of these evaluation criteria may not stop the Developers from appealing the decision made by Council.  Fortunately, when the appeal is presented in front of the SMB, an Administrator or Planner can show the SMB the evaluation criteria used to make the decision, which should bolster Council’s position.  The decision wasn’t made just because Council or the neighbours didn’t like the applicant, or they didn’t want the proposal in their backyard, but because of the solid evaluation criteria listed within their approved planning documents that the Developer was aware of when they submitted the application.

I realize that these may not be comforting words to the neighbour that is furious about the notification letter they just received in the mail, or online, about an adjacent proposal that may affect their current lifestyle.  This is where that public participation is so critical because Council needs to hear how this application will affect you, especially in regards to those evaluation criteria mentioned above.  This feedback will assist Council in making their decision, or perhaps going back to the Developer and asking for a revision to the proposal to minimize these adverse effects that the existing landowner is feeling. Council’s should consider your feedback prior to deciding, but please remember that their decision may not match exactly what you suggested. 

Public Consultation, Does it Really Matter?

Many of my municipalities are proceeding with subdivision applications, and the public notice procedures involved. If the application is a discretionary use, then public notification is required before Council makes the decision to either continue with negotiating with the developer, or denying the application entirely.  It is Council’s discretion to make the final decision, but they do want to hear what their ratepayers have to say: what do you think? Is it idea good or bad?

In some cases public notification is not required, such as if the municipality receives a subdivision application for a permitted use (i.e., a residential subdivision in a residential district), and Council can promptly make that decision at the next Council meeting.  If the proposed subdivision is for a discretionary use, then the Zoning Bylaw will outline public notification procedures that must be completed before Council makes their final decision, such as posting the notice in the newspaper, putting it on their website, and mailing letters to adjacent landowners. 

A fellow called the office this week asking if it was worth it to put in his letter of concern for a subdivision, because will Council even consider it?  Folks, it’s important to remember that your municipal Council was elected by you, so they probably care what you think about a decision that may affect you.  However, this does not mean that they will agree entirely with your position, or follow your recommendation to approve or deny the application; however, but as elected officials they are to consider your opinions before they render a decision. 

Informed decisions are best achieved when people provide both positive and negative feedback on a proposal.  Not all submissions have to be negative, but typically that is all we hear.  It seems that when people have no problem with a proposal they don’t write a letter, so all Council sees are the letters of concerns and recommendations to completely deny the application.  If you are in support of the proposal, please also voice those opinions.  Or, you can even comment in your letter what aspects of the proposal that you like, and which ones need improving. 

The types of letter that include both positive and negative comments are the ones that I find most informative when I’m preparing to debrief Council on ratepayers concerns.  It is beneficial to read the reasons why you don’t like the proposal, and what is the make-or-break feature that you’re concerned with?  If you can explain why a certain feature is concerning to you, then it is possible that within the framework (or subdivision design) your Council may be able to alter the plan to make it more suitable for everyone.  Council may not want to deny the application entirely, but your feedback may give them ideas on how to alter it to meet the needs of all parties involved.

A great example of this process occurred in one of my municipality’s a few years ago up at a lake.  There was a developer that wanted to subdivide adjacent to an Organized Hamlet.  The OH didn’t want the subdivision because it was going to use their infrastructure without contributing to it.  The OH Board came into the Council meeting with a list of concerns and why these items bothered them.  Council listened to the concerns, weighed both sides of the argument, and made their decision to allow the subdivision with major revisions based on the feedback provided by the OH.  Both parties got something out of the decision: the Developer got his subdivision, but couldn’t use the OH infrastructure free of charge, which made the OH happy. 

Planning processes include public consultation for a reason, to hear what ratepayers like yourself have to say.  Council’s should consider the feedback provided to them, weigh the options, and then make their decision based on the information provided to them.  I always encourage people to participate, good or bad, because this feedback is one of the only gauges Council and Administration have when deciding the right director to proceed.

Where's the Line? Does it Matter?

When it comes to lake development one of the most stressful parts for ratepayers is determining exactly where to place their building within their lot.  You’re making a big investment to build that cabin, or garage, or gazebo, or landscape your property to create that perfect piece of paradise that you will enjoy for generations.  Do you know that you’ve built within your property boundaries? What happens if you don’t?

The fact of the matter is, if you don’t get a Saskatchewan Land Surveyor (SLS) to lay out your building, you don’t know exactly where your building will be lying, and if the structure will be within your property boundaries.  I’ve had cases where ratepayers found three of the four pins, or all four pins, and they still built too close to property lines.  We all know that hiring a SLS isn’t cheap, and you feel as though they were only there for half an hour because that’s the only time you saw them around your lot.  Each job typically takes at minimum half a day as SLS’s verify the correct pins.  Nonetheless, spending the money on the SLS means that you have peace of mind that the building is in the right place – before you build.  I can guarantee that the cost of hiring an SLS to lay out your cabin or garage is going to be cheaper than the cost to move that building if it’s found too close to the property line. 

Depending on your municipality, some require: that an SLS lays out the building and then come back and do a Real Property Surveyor’s Report (RPSR) afterwards; others require the RPSR after time of foundation to verify that the building is in the right place before you build your structure; others require it after construction is all finished; and some don’t require an RPSR at all.  For those municipalities that do require an RPSR, if the RPSR verifies your building is too close to the property lines, then Council is bound to upholding their Zoning Bylaw and they will be forced to begin enforcement on your structure.

According to section 79 of the Planning and Development Act, 2007, Council is bound to upholding their Zoning Bylaw.  Enforcement typically includes the landowner moving the building, altering the building so it abides by the setbacks, or removing the building in its entirety.  In every case I’ve seen, the municipality has reluctantly proceeded with enforcement because it is a stressful process, but unfortunately, they are legislatively required to.   

Unfortunately, out at the lakes there have been many times my municipalities proceeded to the local Development Appeals Board (DAB) and the Saskatchewan Municipal Board (SMB) because someone has built too close to the property line.  The DAB and SMB are quasi-judicial boards that review these cases to evaluate the facts and stories of the parties involved to determine whether the person needs to move the building or not.  They evaluate the cases on 3 items, does the infraction: (i) grant to the applicant a special privilege inconsistent with the restrictions on the neighbouring properties in the same zoning district; (ii) amount to a relaxation so as to defeat the intent of the Zoning Bylaw; and (iii) injuriously affect the neighbouring properties.  This Board will decide to uphold the municipality’s enforcement, or to side with the landowner that the infraction is minor and shouldn’t affect any surrounding landowners. 

It’s a tough decision for the Board, and enforcement is stressful for all parties involved.  What is interesting is that after each of these setback violation appeals, every landowner has stated that they should have just spent the money on the SLS to get the building laid out beforehand, because the money it would have cost for the SLS is minor compared to the time and stress involved in the appeal.

Easier to beg for forgiveness, probably not

At a recent ratepayer meeting in one of my communities, the age-old question was raised by a local farmer, “Who are you to tell me what I can and can’t do on my land? Why should I need to ask permission to do something on my property?” There are primarily two reasons why municipalities want to regulate land uses.

In 1983, the Province of Saskatchewan adopted the Planning and Development Act for the first time, which authorized councils to adopt an official community plan and zoning bylaw to regulate all land uses within their municipal jurisdiction, including agricultural lands. Amended in 2007, the act authorizes a municipality to list items that are “permitted” and “discretionary” within zoning districts throughout the municipality. It is under this provincial authority that municipalities can tell everyone (including farmers) what they can and can’t do.

There is no point beating around the bush, folks. The first reason a municipality would want to regulate land uses is so that they can tax you appropriately. They want to know if you’re building something residential or commercial, because those developments are taxable on a farm. Other provincial legislation is strict on what a municipality can regulate for farmers (Agricultural Operations Act, Nuisance Provisions Act), so the municipality shouldn’t be asking you to put in permits for corrals, grain bins or barns if the use of those buildings and structures are strictly agricultural. If your business changes, and you begin to operate a commercial venture out of your farm, you may need a permit.

Most farmers these days have enough cultivated and arable land to exempt their residence on the farm, so likely you won’t be paying taxes on the house, if you remain farming. Remember, taxes are not revenue generators, but they do assist in the paying for your roadway maintenance, landfill or transfer site, administrator and staff, libraries and other services the municipality provides.

The second reason is to ensure compatible land uses occur, which includes the protection of agricultural lands. When a rural municipality writes planning documents, it must receive ministerial OK in Regina before it becomes effective. This review includes a stop at the Ministry of Agriculture (among other ministries) for them to review the documents to ensure the municipality is not infringing on farmers’ rights. If the municipality has an approved zoning bylaw, then the Ministry of Agriculture is comfortable with what is included in the document, therefore, the Minister of Government Relations is, too.

You may be wondering why agricultural lands need protecting? I remember one of my first days on the job, and I had an irate ratepayer call to complain because the neighbours’ grazing cows were too close to their property. They asked ifthe municipality couldn’t do something to quiet the cows down, stop the smell and make the farmer move the cows away from their acreage? Since that day, I’ve heard complaints from acreage owners about noise from cow-calf operations, dust from combining at harvest and frustrations due to delays from livestock drives. In each one of these cases, it has been great to refer to the zoning bylaw and remind the ratepayer that they chose to live in an agricultural district, which is supposed to be for cattle drives, horses grazing and crop farming.

Regardless of whether you’re a farmer or not, the municipality has adopted these regulations for a reason, such as wanting to assist you in protecting your investment. You let us know that you’re having a commercial operation on your farm, and your clients may end up with a better road to get to your business, which means more money in your pocket. Oh, and one other thing, please don’t say, “It’s easier to beg for forgiveness, than ask for permission”.

Subdividing: who should pay the costs?

There is a constant struggle within the planning and development world to decide who should pay for the costs of subdividing. Depending on whom you ask, each party will have a different perspective — municipalities, the provincial government, land surveyors and the developers themselves. So who should pay? 

First of all, what costs are being discussed? When an acreage is subdivided out of an  agricultural parcel, this typically means two houses can be built (one on the acreage and one
on the remaining parcel). This means two approaches, more wear and tear on the municipal roadways, more garbage going to transfer sites and landfills, more sewage to the lagoon
(if the subdivided parcel is under 10 acres) and so on. The existing ratepayers have been paying taxes that contribute to the basic maintenance of the existing municipal servicing
(as taxation is typically not a revenue generator), and subdivisions usually take advantage of existing infrastructure to market their development. This is often why as soon as a new road
is built, more requests for subdivisions and houses begin to be received by the municipality.

Developers want to make as much money as possible selling their subdivision, which means they want to reduce their costs as much as possible. The general mentality tends to be their subdivision will be diversifying the municipal tax base, and the municipality will have more taxes to draw from. If the municipality costs increase, then they would be discouraging development through increased costs, right? Developers don’t want to bear
the costs of building that new road because someone else will subdivide on the opposite side of that newly constructed roadway in a year and not contribute to those construction costs. 

From the municipality’s perspective, infrastructure construction is not cheap, and most can’t afford to solely pay for all the construction or upgrades of roads, lagoons, transfer sites and so on. The taxation system in place is for the maintenance of the existing infrastructure with existing demands, and any new construction or upgrades will result in the municipality having to find additional money somewhere, or raising taxes to cover the costs of these new expenses to accommodate a new subdivision.  The municipality will assume the responsibility
of maintaining that new road once it’s constructed, so why should they have to build the road, too?

Land surveyors want to make their client happy, so they try to negotiate between the parties, but with the intent of helping whomever their client is, municipality or developer. In this road example, they may suggest both parties cost share the road because the municipality is getting more taxes and the developer is paying to install municipal infrastructure. 

Then there is the province. They want to see costs paid upfront by someone so that, at a later date, the municipality isn’t calling for provincial funding. Recent planning and development
sessions hosted in the area included interesting statistics that state in a 40-year infrastructure
cycle (which is the average lifespan for infrastructure) the costs are broken down as follows: operating and maintenance – 58 per cent, refurbishing – 29 per cent, construction – 8.7 per cent, transition – 3.3 per cent, design – 0.9 per cent and planning and surveying – 0.1 per cent. Session facilitators typically encourage the municipality to require the developer to pay for the
construction and upgrade costs through the signing of a servicing agreement and contribute, at minimum, 13 per cent (construction, transition, and planning and development) of the costs for that infrastructure.

So who should pay? Regardless of which position you take, the subdivision construction costs will get paid somehow: either paid at the beginning by the developer or later by
the municipality’s ratepayers through taxation. One thing is for sure, it is your municipal council that has to make the decision on who should pay, and this is a tough decision. Councils should have policies adopted and defensible cost evaluations to support  consistent decisions.

‘Do I need a permit?’ The answer is likely ‘Yes’

The first question always asked when someone calls into a municipal office about building something on their property is, “Do I need a permit?” Most often the answer is
“Yes, both.”

Most people don’t realize that the majority of municipal offices require the submission of two permits for development.  If your municipality has adopted a zoning bylaw, then you will need to submit a development permit application to request if you are allowed to build what you want to build on your property.

The provincial government has created legislation that allows municipalities to control what you build on your property, to make sure land uses are compatible.  The development permit will require a site or plot plan showing where you want to build the structure, the dimensions of the building and how far away you intend to build to from the property lines. When you submit the development permit, the municipality is comparing your application with the land uses outlined in the zoning bylaw, the setbacks, the sizes and heights of the structure and it is usually black and white: does it meet the requirements or not?

Why, you ask? Well, let me use an example, in a Residential Zoning District, the intended land uses are houses and accessory structures like garages, sheds, decks and the like. The municipality starts hearing complaints when people don’t keep the residential areas as residential, which is why bed and breakfast applications are always so controversial.

If your municipality has adopted a building bylaw, then you will need to complete a building permit, which the municipality will forward to their building inspector to make sure that what you’re proposing to build meets the National Building Code. The NBC
outlines the minimum building standards and code that all construction must meet. The NBC was adopted to protect public safety, such as making sure that the house you’re
constructing doesn’t fall in while you’re sleeping. 

In order for the building inspector to review what you’re proposing, you will be required to submit construction plans that show the type of material you’ll use and how you plan to construct the structure. 

There are a few exceptions to these rule, such as if the building is to be used for agricultural uses on a farmstead, or if the structure is less than 100 square feet total. However, some municipalities may still require permits for these types of structures, so it is best to contact your local administrator or planner to ask whether you need to submit permits before you intend to build.