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Commercial composter wins appeal on zoning

Aug 15 2012

The B.C. Court of Appeal has tossed out a decision that would have allowed the Cowichan Valley Regional District to "downzone" a property in Cobble Hill, the site of a commercial composting and recycling business.

"The regional district took it upon themselves, with no one applying, to downzone Fisher Road's property to eliminate the only two uses, composting and recycling, that were going on on the property," said John Alexander, counsel for Fisher Road Holdings.

Fisher Road Holdings at 1355 Fisher Rd. has been composting since 2000. It has a permit to carry on business, but the court fight was over the acceptable land uses for the property.

In 2009, Fisher Road planned to expand its composting operation and add recycling to its business, and applied to the CVRD amend its solid waste management licence.

The CVRD responded by establishing a citizen's advisory committee to review the application and make recommendations, and hiring consultants to conduct an environmental review.

In June 2010, a staff report provided to CVRD's Electoral Area Services Committee included residents' concerns about the smell and the threat of contamination from its facilities. The report concluded that it would be difficult to limit smells or threats to groundwater.

After the report was received, the downzoning bylaw was prepared.

An environmental review dated Nov. 23, 2010, was inconclusive in terms of determining the threat of a composting operation to area wells. A citizens' advisory committee report submitted about the same time recommended a comprehensive hydrogeological investigation take place before the licence amendment be considered.

On March 9, 2011, the downzoning bylaw came into effect and composting, recycling and auto wrecking were removed as allowable uses. Fisher Road Holdings continued to operate as a non-conforming use.

The B.C. Supreme Court in November 2011 upheld the CVRD's downzoning bylaw.

But the appeals court overturned that decision and, in a decision released Tuesday, found the CVRD breached its duties of notice and procedural fairness to the public, including Fisher Road Holdings.

The CVRD failed to notify the public about the extent to which it was relying on the environmental review and a report from the citizens' advisory committee to make its decision.

The judgment restores the permitted uses of the property.

Fisher Road Holdings is upgrading its equipment to address neighbours' concerns, Alexander said.

"They're just working to continue to improve the business as much as possible."

Tom Anderson, CVRD's manager of planning and development, said the regional district may have lost the court battle over the land-use bylaw, but Fisher Road still must obey the terms of its licence.

smcculloch@timescolonist.com

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