Since the 1970s, land deemed suitable for agriculture in British Columbia has been placed in the Agricultural Land Reserve (ALR). The purpose of the ALR is to preserve agricultural land for farm uses. If an owner wishes to use ALR land for a non-farm use, they need to seek the permission of the Agricultural Land Commission, a governmental authority responsible for administering the ALR. Local governments have limited authority to regulate the use of ALR land within their jurisdiction.
Over the past few years, the Province of British Columbia has made a number of amendments to the regulatory regime governing the ALR: the commission is now required to consider social and economic values – as well as farming – when making decisions affecting certain areas of British Columbia; medical marijuana production facilities are now permitted in the ALR; and the rules respecting the operation of wineries and cideries, and the leasing of farm land have been relaxed. The following will examine how these amendments may impact local governments.
How the ALR Works
The regulatory regime governing the use of land in the ALR consists primarily of the Agricultural Land Commission Act1 and the Agricultural Land Reserve Use, Subdivision and Procedure Regulation.2 The ALR is administered by the commission, an administrative body established under the Act. The members of the commission are appointed by the province.
The stated purposes of the ALR are to preserve agricultural land, encourage farming, and encourage local governments to accommodate farm uses.3 The term "farm use" generally refers to farming of land, plants, and animals and similar activities designated by the regulation. The term "non-farm use" refers to all land uses that are not farm uses.
Unless permitted by the regulation, if an owner wishes to use ALR land for a non-farm use, they must apply to the commission to permit the use or to exclude the land from the ALR. If the proposed use would lead to an amendment to a local government land use law, the commission requires the local government's consent before permitting the use.4
The regulation contains laundry lists of uses that are permitted in the ALR and cannot be prohibited by a local government.5 By adding to these lists, the province can relax or tighten the ALR regime at its discretion.
Socio-economic Considerations
On September 5, 2014, the province divided the ALR into two conceptual zones: Zone 1 and Zone 2. Zone 1 includes areas on Vancouver Island and the Sunshine Coast, in the Okanagan and in the Lower Mainland.6 Zone 2 includes areas in northern and eastern British Columbia.
As amended, the Act requires that, in Zone 2, the commission consider not only the purposes of the ALR regime (to preserve agricultural land and encourage farming), but also economic, cultural, and social values, along with regional and community planning objectives.
The likely purpose of this amendment is to ensure that, especially in resource development areas, the commission's decisions (for example, to permit a non-farm use or to exclude land from the ALR) are grounded in more than farming considerations. One can hypothesize that the socio-economic considerations of the commission will generally be consistent with those of the provincial government.
That being said, the commission does not have unlimited authority to override local land use planning. In instances where the proposed non-farm use or exclusion from the ALR would lead to an amendment to a local government land use law, the commission still requires local government approval to proceed.
Medical Marijuana Production
On May 7, 2015, the province prescribed that the production of medical marijuana in accordance with the Marihuana for Medical Purposes Regulations (MMPR)7 is a farm use.8 Local governments cannot prohibit this use without the approval of the province.
Concurrently with the amendment, the province suggested by-law standards for local governments in respect of medical marijuana production facilities (MMPFs). Among other things, MMPFs should:
- have a minimum setback of no more than 30 metres from any watercourse;
- have a maximum lot coverage of no less than 35 percent, and a maximum height of no less than 15 metres;
- have minimum setbacks between 15 to 30 metres (at the local government's discretion) from any property line;
- have a minimum setback of no more than 30 metres from any neighbouring residential use outside of the ALR if a buffer is used, and 60 metres if a buffer is not used. (Buffers can combine separation, vegetation, and fencing to mitigate the impacts of farming and urban activities); and
- have a minimum setback of no more than 150 metres from any neighbouring park and school ...9
Pursuant to the MMPR, medical marijuana must be produced indoors, at a site with restricted access.10 As such, adding MMPFs as a permitted farm use means that local governments will have limited authority to regulate potentially large secure bunkers, the construction and use of which is governed by federal regulation. The strongly suggested provincial by-law standards further curb the local government authority.11
The full impact of this amendment on local governments cannot yet be assessed. It will likely depend on the number of licenses and the location of such facilities within the local government.
Wineries and Cideries
On June 15, 2015, the province amended the regulation to relax permitted uses associated with wineries, cideries, meaderies, breweries, and distilleries.
Before June 15, only wineries and cideries were permitted in the ALR. These operations were subject to a number of restrictions. Most notably, the sale of alcoholic beverages (other than the local product) required the consent of the commission and, often, the local government. This made it difficult for winery and cidery operators to open a full-service restaurant in support of their business.
As of June 15, breweries, distilleries, and meaderies, as well as wineries and cideries, are permitted in the ALR. These businesses can now sell their own and other alcoholic beverages, provided that the beverage is to be consumed immediately. This will likely facilitate the opening of full-service restaurants in the ALR.
Local governments cannot prohibit the above uses without provincial approval, but can likely anticipate some associated practical concerns, such as access, traffic, policing, and the like.
Leasing Farm Land
On June 15, 2015, the province clarified that a farm can be operated by a person other than a farm owner, provided that the operation is pursuant to a lease that stipulates that the leased land may be used only for one or more farm uses.12 In and of itself, this amendment is not likely to impact local governments. However, it may enable more businesses in the ALR to be operated by non-local entities.
Final Thoughts
In summary, the recent amendments to the ALR regime enable farmers to do more with their land, including leasing it to a third party and – in some areas – applying for a non-farm use based on socio-economic considerations.
On the whole, the amendments are likely to be welcomed by property owners and businesses. Whether they will be equally welcomed by local governments is too soon to tell. Some of the uses – such as MMPFs – may be politically controversial, especially if operated pursuant to a lease by an entity that has little local presence. Local governments should anticipate the newly permitted uses and prepare as best they can.
Footnotes
1 S.B.C. 2002, c. 36.
2 B.C. Reg. 171/2002.
3 Agricultural Land Commission Act, section 6.
4 Ibid, ss. 20 and 25.
5 Regulation, ss. 2 and 3 (4).
6 This term typically refers to areas around Metro Vancouver.
7 MMPR is prescribed under the federal Controlled Drug and Substances Act, S.C. 1996, c. 19.
8 Despite being a farm use under the Act, MMPFs do not qualify for a property tax break available for other farm uses (see Classification of Land as a Farm Regulation, B.C. Reg. 411/95 under the Assessment Act, R.S.B.C. 1996, c. 20).
9 May 7, 2015, News Release www2.news.gov.bc.ca/news_releases_2013-2017/2015agri0021-000631.htm.
10 MMPR, s. 14.
11 For most local governments, the by-law standards are suggestions only. For a few local governments, they are mandatory (see the Local Government Act, R.S.B.C. 1996, c. 323 and the Right to Farm Regulation, B.C. Reg. 187/2001 under that Act).
12 Regulation, clause 2 (2) (q).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
