The presence of water on the Elsner property southeast of Sundre was the focus of a Municipal Government Board jurisdictional hearing in Olds on July 29.ìIt's our submission that there are several water bodies on this property,î lawyer David Smitten, representing the landowners for the defeated subdivision, said in his summation.ìMr. Elsner indicated four distinct water bodies on his land Ö You have a continuous flow from a variety of sources,î Smitten said.At issue was whether the MGB ñ a provincial body ñ has jurisdiction to hear the landowners' appeal of an April 21 Municipal Planning Commission decision to refuse their subdivision application for 12 one-acre lots on 22 acres.Under the legislation, the MGB is the appropriate body for appeal only if one of several conditions are met ñ in this case, that the land contain or be situated adjacent to a water body.In her submission, Mountain View County lawyer Sheila McNaughtan argued the appeal should be heard by the county's subdivision and development appeal board, ìbecause there is no evidence that there is a body of water or a bed and shoreî on the property.In an unusual turn of events, Smitten said his client was in complete agreement with the conclusions in a report written by former planning and development director Diana Hawryluk ñ and Hawryluk gave evidence at the hearing supporting the Elsners' argument that the MGB should hear the appeal.ìWe have heard evidence today quite clearly that this water body/creek/stream (on the southwest corner of the parcel) is adjacent to the property,î Hawryluk said. ìAnd it was indicated it's a close call as to whether it is on the property.îAs well, she said, it's clear from the 2000 and 2001 Komex reports that ìthe area has major drainage basins (and) not just surface drainage but groundwater, which has been noted by people on the site.îThe property, Hawryluk said, lies in a recharge area for the Red Deer River Basin.ìIt does go to the river ñ it does touch the property as it goes through.îMcNaughtan, noting at the outset that ìyou're no longer employed by the county,î asked Hawryluk to comment on the date of her submission, June 30, also being her last day on the job.Hawryluk said there was no reason for the date. ìI was requested to submit the report.îAfter further questions, McNaughtan told the board: ìThe county does not accept the position of Ms. Hawryluk. It's clear that what she was referring to is Ö that there is a large aquifer and groundwater basin in the area. It's my submission that an aquifer or groundwater doesn't satisfy the definition ñ because it doesn't have a bed and shore.îAs MPC had refused the subdivision application largely due to stormwater and drainage issues, McNaughtan added, ìI think Mr. Elsner's submission today does suggest there are drainage issues on this land.îSumming up, McNaughtan reiterated that when filing his application, Jack Elsner indicated there was no body of water present on the land; that a planning report said there were ìno observed wetlands or water bodies on the propertyî; and that no legal survey had been presented as evidence to show the location of a body of water with a bed and shore.Giving evidence to the board, Jack Elsner described how he constructed a French drain to divert water from the area around the house and yard, adding that water surfaces at four locations on the property.ìIt's definitely from an underground source,î he said. ìThose four spots are wet all year round.îWhen filing his application, Elsner acknowledged, he had indicated that there was no water body on the site. ìBut I was referring to the building envelopes within the concept plan. Inside the concept plan there is no water flow. Outside there is.îBob Nerrie, the adjacent landowner to the west (and an MPC member, who did not sit to hear the Elsner application), confirmed that water flows across to his property but ìonly during wet times,î he said. ìMost years the stream doesn't flow and the grass does grow.îIn presenting his case for the Elsners, Smitten argued that the provincial statutes ìare very inclusive as to what constitutes a water bodyî and that there was ìample evidence to determine there is a body of water and bed and shore.îOn the matter of his client not indicating the presence of a body of water on his application, ìWe don't deal with the legal niceties of what might be a body of water at the application stage,î Smitten said.Of Nerrie's evidence he said: ìMr. Nerrie called it a stream Ö then tried to backpedal his comments.îThe board did not set a date to release its decision, but the tentative dates of Aug. 23 and 24 have been scheduled for the hearing if the MGB does hear the appeal.The July 29 jurisdictional hearing had been scheduled for Calgary but was moved to Olds College at the request of an adjacent landowner.
