The long emotional battle is over for a group of Fleming Avenue residents opposed to Custom Bulk Services' controversial plan to develop a second fracking sand loading facility.
“As far as we are concerned, the appeal is over,” said Patrick Galesloot, chair of the Subdivision and Development Appeal Board (SDAB) after formalizing the verbal agreement by company owner Myles Monea to comply with front and rear setbacks.
Fleming Avenue residents were stunned earlier this month into silence by the decision.
“We are disappointed in the decision made by the SDAB,” said Fleming Ave. resident Kevin Small after the meeting. “We did all we could to bring our concerns to the table.“
Small added that an amicable solution to the industrial development of Fleming and future areas requires a buffer zone of light industrial areas between heavy industrial and residential areas as stated in Penhold's Municipal Development Plan.
The town's Municipal Planning Committee (MPC) originally approved Custom Bulk's application on May 21 to expand Monea's operation at 920 Fleming and to construct a new site at 950 Fleming Ave. with conditions.
After receiving notice of the approval, the Small family, along with several others, filed an appeal against Custom Bulk Services' development prompting an initial Subdivision and Development Appeal Board (SDAB) meeting for June 26, which drew 20 individuals including Monea and his legal counsel Gayle Langford.
During that meeting, Langford presented a legal brief that raised the issue of jurisdiction/legal authority, the basis on which the appeal was based. There was also a short discussion on whether MPC acted reasonably in their decision.
“As the land at 950 Fleming Ave. is leased by Monea from CP, we have to ask the question does the Town of Penhold have jurisdiction?,” said Langford. “If they do, then they must rule on the variances and relaxations. If not, then the matter must be dismissed and Custom Bulk Services must deal with the federal government.”
It was at this point the rest of the meeting was postponed and the meeting was reconvened until July 8 to study the issue of legal authority.
Red Deer lawyer Lorne Goddard served as legal counsel for the Town of Penhold on the issue of jurisdiction.
“It is my opinion that the MPC has legal authority to rule on the issue,” said Goddard during the July 8 meeting.
Langford, in her brief, took an opposing position that SDAB did not have the authority to deal with the matter based on federal jurisdiction over railways.
Based on the legal position of Penhold's SDAB, the issue of height restrictions and front/rear setbacks was ruled on with SDAB chair Galesloot stating that the 105-foot towers were structures, not buildings.
Penhold resident Doug McNaughton did not agree with the decision that the tower was a structure.
“I would like to point out that the legal definition is confusing and that in my interpretation the tower is a building and should fall under the height limitations,” said McNaughton.
Galesloot duly noted the disagreement and addressed the issue of the rear setback.
“We will comply with the Land Use Bylaw in regards to setbacks,” said Monea. “The further out we place our storage bins, the closer we are to the street but we would rather not do that.”
A motion was passed to end the SDAB meeting, allowing Custom Bulk Services Inc. to proceed with their expansion on 920 Fleming Ave. and 950 Fleming Ave.
Langford noted Monea was still required to have the approval of Canadian Pacific Rail to move forward but there had previously been approval of any ‘north or south expansion' of his company via email.
