Field

Part 4: Land-Use Planning

Question 24: Can municipal planning strategies and by-laws affect the use of my land?

Answer:

The Municipal Government Act is a provincial law that provides extensive authority to municipalities to control land use and development. The Act allows municipalities to develop municipal planning strategies and land-use by-laws respecting the development of land in their jurisdiction. In setting these strategies the municipal government has broad discretion to consider social, environmental and financial effects of development. Once a municipal planning strategy is in place, new development that is inconsistent with the planning strategy is not permitted.

As an example, Kings County Land Use By-law # 75 identifies an Agricultural (A1) Zone to provide for agriculture as a dominant use which is to have priority over all other uses. The identification of the A1 Zone is based on the soil type found on the Agricultural Land Use Information Maps. Land Use By-law # 75 enables the municipality to restrict non-farming activities on these lands. The land use by-law is addressed in the Kings County Municipal Planning Strategy, the Strategy states:

 

By examining trends, it is thought that, without intervention, there would be a significant amount of non-farm development on prime agricultural land. For this reason, Municipal Council has defined an Agricultural District where an expansion of farming activities is promoted and new non-farm uses are discouraged. The District is to be the ‘home’ for agricultural development with few limitations on farming activities.

 

Municipal governments also have authority to regulate a variety of activities including fencing, outdoor storage of goods, machinery, vehicles, building materials, waste materials, etc., and the location of disposal sites for any waste material.

The Municipal Government Act provides municipalities with the authority to impose by-laws to address nuisance concerns (i.e. noise, weeds, burning, odours, fumes and vibrations); however, the Farm Practices Act prevents a municipal nuisance by-law from restricting a normal farm practice carried on as part of an agricultural operation.

Municipal by-laws like any law may be enforced once they are in place. There are however, opportunities for members of the public and concerned citizens to have their views considered before the by-law is passed. The Municipal Government Act requires that all municipal planning strategies and land use by-laws be made available for public consultation before they are finalized. In most instances a public hearing is required.

If a municipality passes a land-use by-law that you sincerely believe will adversely affect the value, or reasonable enjoyment, of your property or property you occupy it may be possible to appeal the by-law to the Nova Scotia Utility and Review Board. The circumstances in which an aggrieved person can appeal are limited and advice should be sought prior to launching an appeal.

For more information:

On-line Resources:

Nova Scotia Utility and Review Board
http://nsuarb.novascotia.ca/content/planning

Reference Section:

Municipal Government Act, sections 168, 172, 174, 203,
205, 212, 213, 220 page 28
Farm Practices Act, section 12 page 21

Question 25: What is the “provincial interest statement on agriculture”?

Answer:

In designing municipal planning strategies and land-use by-laws documents, municipal governments are required to ensure that the documents are reasonably consistent with provincial statements of interest. The “provincial statements of interest” are contained in Schedule B of the Municipal Government Act.

The Municipal Government Act includes a provincial statement of interest on agriculture that has as its goal, to protect agricultural land for the development of a viable and sustainable agriculture and food industry.

The statement of interest on agriculture includes the following provisions:

1. Planning documents must identify agricultural lands within the planning area.

2. Planning documents must address the protection of agricultural land. Measures that should be considered include:

 

(a) Giving priority to uses such as agricultural, agricultural related and uses which do not eliminate the possibility of using the land for agricultural purposes in the future. Non-agricultural uses should be balanced against the need to preserve agricultural land.
(b) Limiting the number of lots. Too many lots may encourage non- agricultural development. The minimum size of lots and density of development should be balanced against the need to preserve agricultural land.
(c) Setting out separation distances between agricultural and new non- agricultural development to reduce land-use conflicts.
(d) Measures to reduce topsoil removal on lands with the highest agricultural value.

 

3. Existing land-use patterns, economic conditions and the location and size of agricultural holdings means not all areas can be protected for food production, e.g., when agricultural land is located within an urban area. In these cases, planning documents must address the reasons why agriculture lands cannot be protected for agricultural use. Where possible, non-agricultural development should be directed to the lands with the lowest agricultural value.

Although governments are not required to comply with the provincial interest statements, they do serve to guide provincial government departments, municipalities and individuals in making decisions regarding land use. They are supportive of the principles of sustainable development. The Act states that development undertaken by the Province and municipalities should be reasonably consistent with the statements.

For more information:

On-line Resources:

Provincial Interest Statements
https://www.novascotia.ca/just/regulations/regs/mgstmt.htm

Reference Section:
Municipal Government Act, section 198, Schedule B page 28

Question 26: What can I do if the government chooses to expropriate my land?

Answer:

Expropriation in Nova Scotia is regulated by the Expropriation Act. Expropriation is the taking of land without the consent of the owner by an expropriating authority given the power to expropriate under a statute.

Under the Expropriation Act the province is authorized to expropriate land for the following reasons:

• Any purpose for which a minister is authorized under a specific Act.
• To carry out an agreement between the province and the federal government or a city, town or municipality if the agreement is financed from public funds.
• Any public works such as highways, roads and bridges, and public buildings.
• Any other purpose that is a public purpose.

The Expropriation Act provides for a means of compensating persons whose land is expropriated. Compensation is generally set at the market value of the property, which is the price a willing buyer would pay to a willing seller on the open market. The compensation that is paid to the owner of the land is the aggregate of:

• the market value of the land,
• reasonable costs, expenses and losses arising out of or incidental to the owners,
• damages for injurious affections,
• value to the owner of any special economic advantage to him arising out of or incidental to his actual occupation of the land.

Impact on other land

Where only part of an owner’s land is taken, compensation may also be claimed for an ‘injurious affection’ to the remaining lands, including the reduction in their market value and personal and business damages resulting from construction or use, or both, of the works.

Expropriation of a family home

Where a family home is expropriated, the owner is entitled to an amount that would permit the purchase or construction of a reasonably equivalent home. Where a landowner is forced to relocate as a result of expropriation, he may be entitled to compensation for moving expenses.

Expropriation affecting business activity

Where a business is located on the land to be expropriated, compensation is to be paid for business loss resulting from the relocation of the business made necessary by the expropriation but these business losses are not determined until the business has moved and in operation for 12 months or until 3 years have elapsed from the date of expropriation, whichever occurs first. If it is not feasible for a business owner to relocate, the compensation for the land is to include an amount for the loss of the business.
Other than making representations to the appropriate authorities, there is little one can do to prevent an expropriation. If the expropriation is approved, the authority simply files certain documents at the registry of deeds, and the expropriation is effective.

If the landowner does not agree with the compensation offered, the amount can be appealed to the Utility and Review Board. One may want to seek advice about the property values from a real estate appraiser and seek legal advice. Even if you do not accept the offer of compensation from the expropriating authority right away, that authority must pay you 75% of its offer while you seek additional compensation. It would be wise to seek legal advice to assist in the process and negotiate fair compensation.

At any time before the compensation has been paid in full, the authority can declare that the land is no longer necessary and is abandoned it – in such a case the land re-vests in the person from whom it was taken.

For more information:

On-line Resources:

Nova Scotia Utility and Review Board
http://nsuarb.novascotia.ca/content/planning

Reference Section:
Expropriation Act, sections 3, 24-30 page 19

Question 27: Can I put a wind turbine on my farm?

Answer:

The answer to this question will depend on the location of your farm and the size and type of wind turbine you wish to install. Wind turbines are becoming a popular source of energy in Nova Scotia and the siting and regulation of wind turbines in this area is just beginning to be established.

There are generally two types of wind turbines: small scale turbines and large scale turbines. Nova Scotia Power Inc (NSPI) considers a small scale wind turbine to be in the range of 1kW to 50kW, operated by the owner and connected directly to their own electrical service. NSPI considers a large scale wind turbine to be in the range of 0.6 MW to 2.0 MW and connected with the NSPI distribution and transmission system.

Regardless of the size or type of turbine(s) you wish to put in place there are a number of things that must be considered to ensure that the turbine is effective, safe and will not adversely affect the environment. For information on how much wind exists in your area, you can consult the Nova Scotia Wind Atlas. The Wind Atlas provides a map of wind resources across the province. Environmental and safety considerations include:

• setbacks from other buildings and structures
• separation distances to address noise impacts on neighbors
• impacts on birds and bats
• break down of the equipment resulting in blade throw, ice throw, leaks.

There are no federal laws currently in place that directly address wind turbines.

In Nova Scotia the Environment Act requires any wind turbine or combination of wind turbines that can produce at least 2MW of energy undergo an environmental impact assessment.

Most municipalities in Nova Scotia have some means of regulating wind turbine development and several have included statements in the municipal planning strategies that address the development of wind energy in the municipality.

Regulatory Approaches to Wind Development Among Nova Scotia Municipalities (2007) [taken from Model Wind Turbine By-laws and Best Practices for Nova Scotia Municipalities prepared for the Union of Nova Scotia Municipalities, prepared by Jacques Whitford Environment Limited]

Region of Queens Municipality(Planned areas only) Wind turbine generators were considered as-of-right in some zones but with proposed revisions to Land Use By-law, utility scale wind turbines are now being considered by development agreement.
Cape Breton RegionalMunicipality Utility scale wind turbines are permitted as a General Provision throughout the municipality subject to by-law requirements.
County of Pictou Utility and domestic scale wind turbines are permitted by development permit anywhere in planning area subject to by-law requirements.
County of Kings Small scale turbines (no greater than 100kW and less than 52m) are permitted by development permit in specific zones subject to by-law regulations and turbines under 6.1m are permitted as accessory structures in any zone.
Municipality of East Hants Mini and small scale wind turbines are permitted as of right subject to by-law requirements and large scale turbines are subjected to site plan approval and associated requirements.
District of Guysborough Wind turbines and wind farms are permitted by development permit in certain zones subject to by-law requirements.
District of Lunenburg Small wind turbines (less than 12,000 kWh per year) are permitted in designated zones and large scale wind turbine or multiple wind turbines capable of producing in excess of 12,000 kWh per year are permitted through a development agreement process in District 3.
Halifax Regional Municipality Wind turbines permitted by development permit in certain zones subject to by-law requirements.

 

Kings County Example

In Kings County wind turbine development is addressed in Land Use Bylaw # 75. Bylaw #75 defines “small-scale wind turbine” to mean a turbine that converts the wind’s kinetic energy into either electrical power or mechanical energy. The turbine comprises the tower, rotor blades and nacelle. It shall have a maximum rated output capacity of no greater than 100 kilowatts, a maximum total height no higher than 170 feet, and a minimum rotor clearance no less than 15 feet from grade. Power-generating small-scale wind turbines primarily provide power for on-site usage. Section 3.2.16 provides the requirements that must be met to install a small-scale wind turbine (see the Reference Section for details)

For more information:

On-line Resources:

Nova Scotia Wind Atlas www.nswindatlas.ca

Reference Section:
Environment Act, sections 31, 32 page 8
Environmental Assessment Regulations, Schedule A page 16
Kings County Land Use Bylaw # 75 page 40