Medical Marihuana in the ALR

Most local governments in British Columbia have likely already received a letter from the Province advising of regulatory changes affecting medical marihuana and ALR land.

Legislative Changes

The Agricultural Land Reserve Use, Subdivision And Procedure Regulation 171/2002

B.C. Reg. 171/2002 was changed effective May 7, 2015 to incorporate medical marihuana production facilities (MMPFs) into the regulation as a farm use. The specific changes that will affect medical marihuana are found in sections 2(1.1) and 2(2) as follows:

2(1.1)  The activities designated under this section as farm uses for the purposes of the Act must not be prohibited

(a)   by any local government bylaw except a bylaw under section 917 of the Local Government Act or

(b)   by a law of the applicable treaty first nation government, if the activity is undertaken on treaty settlement lands.

2(2)     The following activities are designated as farm use for the purposes of the Act:…

(p)   the production of marihuana in accordance with the Marihuana for Medical Purposes Regulations, SOR/2013-119 (Canada)

Previously, section 2(2) provided that farm activities under that section could not be prohibited but could be regulated, the reference to regulation has been removed and the inability to prohibit has been placed in its own subsection.

This change in the regulation codifies the position taken by the Ministry in 2014 that MMPFs would be permitted in the ALR. All local governments whose boundaries include land in the ALR will be impacted. The local government will not be able to prohibit MMPFs on those lands, although they will be able to regulate them under their zoning bylaw, subject to the requirements in section 46(2) that local governments ensure consistency between their bylaws and the Act, regulations and orders of the Agricultural Land Commission.

Under sections 917 and 918 of the Local Government Act, a municipality can choose to become “regulated” for the purpose of being able to regulate the conduct of farm activities and also prohibit specified farm operations, by bylaw adopted with the approval of the minister. To date four municipalities, Kelowna, Delta, Abbotsford and the Township of Langley, have elected to be regulated.

Changes to the Bylaw Standards

In addition to changing the regulation, the Ministry of Agriculture has also made changes to their Bylaw Standards. Under section 916 of the Local Government Act, the Minister may provide guidance to local governments in developing zoning and other bylaws that may affect farming. These Bylaw Standards are found in the Ministry’s ‘Guide for Bylaw Development in Farming Areas’.

Those local governments that are regulated pursuant to section 918 of the Local Government Act must conform to these Bylaw Standards. For all other local governments conformance with the Bylaw Standards is encouraged but not required.

Three new provisions, aimed specifically at Medical Marihuana Production Facilities, are proposed for addition to the Bylaw Standards:

Business licence – required to operate

Setbacks from Parks and Schools – 150 metre maximum setback from MMPFs to Parks and Schools

Setbacks from non-ALR Residential Uses – 30 metre maximum setback from MMPFs to non-ALR Residential Uses with a buffer, or 60 metre maximum setback if buffer is not employed.

It is also important to note that the following provisions in the Bylaw Standards will apply to MMPFs in the ALR:

minimum lot size – no minimum to be prescribed,

lot coverage – a maximum of not less than 35%, and

building height – a maximum of not less than 15 metres.

The rationale for these restrictions is set out in the guide.

Finally, the Farm-side Edge Planning Guideline will also be applicable to MMPFs, establishing a maximum permitted setback of 100 metres from any urban/ALR boundary.

The above standards limit the maximum setbacks a local government may require under a bylaw but they do not prescribe any minimum setbacks.

Historically, business licences have not generally been required by many municipalities for any farming uses and this is likely to be welcomed by all municipalities, not only as a source of revenue but also as a way to maintain an on-going record of the MMPFs. Currently this requirement only applies to the MMPFs but could, in future, expand to include other types of operations as agricultural activities change.

While only those local governments who are regulated under section 918 are required to conform with the Bylaw Standards, the Province has stated in their information bulletin, dated May 7, 2015, that:

The Province will start working with local governments immediately so that they align local bylaws with provincial regulations. The B.C. government expects that all local government bylaws will be consistent with the regulation and the bylaw standard by early fall of this year…

Over the coming months, the Ministry of Agriculture will work with all local governments in B.C., both regulated and unregulated, so that all local government bylaws regarding marijuana production facilities in the ALR licensed under Health Canada’s Marihuana for Medical Purposes Regulations are consistent with the bylaw standard.

The above indicates that there is an expectation by the Province that all local governments will adopt these standards in their bylaws to deal with MMPFs on ALR lands within their boundaries.

The Province also states in their letter to local government that failing to conform to these Bylaw Standards may leave them vulnerable to a constitutional challenge for “frustrating a lawful initiative of the federal government” making that portion of the bylaw of no force and effect. Given these statements, it is likely that a bylaw that imposes more stringent regulations than the Bylaw Standard would be more vulnerable to legal challenge and should be considered carefully to assess the impact of such regulations.