ISDAB Appeal 2020-01 Decision January 18, 2021 Page 1

ISDAB Decision: D01/21

Appeal No: 2020-01

Hearing Date: January 6, 2021

NOTICE OF DECISION

Date of Decision: January 18, 2020

Appellant: Milla Kerusenko

Applicant: Mountain Air Cannabis represented by Jesse Wasylyshen

Appeal Against: Appeal of Development Permit 21-20D – Re: Location of a Cannabis Retail

establishment.

Subject Property: Lot 6 & 7 Plan 2474DN. Commonly known as 130 & 132 Main Street NW

Land Use Designation: Central Business (CB) District

BEFORE:

Gar Beacom, ISDAB Board Member, Hearing Chair

Kara Rusk, ISDAB Board Member

Carl Fisher, ISDAB Board Member

Graham Cannon, ISDAB Board Member

Tom Weber, ISDAB Board Member

DECISION OF THE INTERMUNICIPAL SUBDIVSION AND APPEAL BOARD (ISDAB)

(Town of Turner Valley, Town of Black Diamond and Village of Longview)

ISSUE

The Appellant brought forward an appeal to the ISDAB on December 9, 2020 regarding a

decision issued by the Municipal Planning Commission on November 18, 2020 approving

Development Permit #21-20D, a development permit approved to operate a cannabis retail

establishment at the subject location at 130 & 132 Main Street NW in the former Post Office

building.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 2

The Appellant cited concerns with the location of the premises approved in Development Permit

#21-20D.

The Appellant brought forward the reasons for the appeal:

• Prominent positioning on a main street frequented by children, youth and families.

• The location’s proximity to the public library, community swimming pool, restaurants,laundromat, post office and daycare.

• Location in close proximity to a block of family homes, including appellants own home.

• Concerns with municipal leaders allowing businesses that sell harmful substances (alcoholand cannabis).

• Concerns with public consumption of cannabis that hinders her family’s enjoyment of naturetrails.

• Concerns with cannabis plants being illegally planted in public spaces.

• Concerns that cannabis use in public spaces is dangerous to all users of such facilities.

• Concerns that a disproportionate number of vendors are selling alcohol and cannabis in ourcommunities which sends the wrong messages to growing youth.

• Concerns that, although there will be no “targeted” marketing to children, the prominentlocation on Main Street is a powerful attractant to youth.

• Concerns that the Town of Black Diamond already has three retail cannabis locations.

• Concerns that the number of alcohol and cannabis retailers outnumber family-orientedbusinesses.

• Concerns over effects of cannabis on childhood brain development.

• Concerns over lack of year-round free / low-cost activities for youth creating mental healthissues.

• Wants the municipality to stop granting permits to alcohol, cannabis and other “harmful”businesses.

• Concern with high cost of appeal creating a barrier to / silencing those unable to pay.

PROCEEDINGS

1. Upon notice being given to the interested parties, a Hearing was held online via video andtelephone conferencing (Telus Business Connect Meetings) on January 6, 2021.

2. A late submission (letter) from the Appellant was received by the clerk via email at 8:56 amand shared with the Board at 9:25am, delaying the opening of the meeting. Participantswere asked to leave the scheduled meeting and the Board met in a separate closed sessionto discuss the contents of the letter, which included a request to have the hearingpostponed.

3. The online and telephone meeting was re-started and all participants were asked to rejointhe meeting.

4. Chair Beacom called the meeting of the Intermunicipal Subdivision and Development AppealBoard to order at 10:07 a.m.

5. The Agenda for the January 6, 2021 Hearing was adopted as presented.

6. The previous ISDAB January 20, 2020 meeting minutes were adopted by the Board.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 3

7. Chair Beacom asked the Clerk to introduce the Board Members

8. The Chair asked the assembly if there were any objections to any of the members sitting thehearing. No objections were received.

9. The Clerk advised the meeting was being recorded for the purpose of providing an accuraterecording of the minutes.

10. The Chair requested the Clerk read into record the matter of the Hearing.

11. Chair Beacom opened the Hearing.

12. The Chair outlined the hearing process including the order in which the proceedings wouldbe conducted, emphasizing that anyone involved in the hearing would have an opportunityto ask questions of any other person in the hearing, directed through the Chair.

13. Chair Beacom noted that only information being brought forward at the Hearing would beconsidered, and that no information would be incorporated that was received outside thedocumentation provided for, or the presentations made at, the Hearing.

14. Chair Beacom noted the purpose of the hearing was to ensure that all parties felt that theyhad their chance to be heard and that the Board gather all the information needed to maketheir decision. It was noted that participants should bring new information and ideas whenthey wished to speak, rather than repeating what was previously said.

15. Chair Beacom asked if anyone present had any questions or concerns regarding theproceedings. None were forthcoming.

16. Chair Beacom addressed the content of the letter that was received that morning from theAppellant, including the request to postpone the meeting.

17. The Appellant was asked to speak to the content of the letter sent in the morning. Shestated that she had difficulty accessing bylaw information through the Town’s website andthat there was not adequate time to prepare for the hearing given the Christmas holidays.

18. The Applicant’s legal representative spoke to the contents of the letter and the request foradjournment.

19. The Chair spoke to the content of the letter and the deliberation that was made by the Boardregarding postponement. He cited that the Notice of Appeal Hearing was distributed toaffected parties on December 17, and that the Appeal Package Report was made availableon December 29, in accordance with prescribed guidelines.

20. The Board denied the postponement request of the Appellant.

21. The Development Authority, represented by Development Officer Judy Mackenzie, madetheir presentation first; summarizing the facts surrounding the issuance of the DevelopmentPermit and the decisions regarding conditions set by the Municipal Planning Commission, asdetailed in her written report.

22. Ms. Mackenzie spoke to the letter that was submitted that morning, indicating that theAppellant was charged $250 instead of $200 and would be refunded accordingly.

23. The Board asked questions of clarification of the Development Authority.

24. The Appellant, Milla Kerusenko, made her presentation. She spoke to the concerns of heroriginal letter as well as the letter she sent that morning.

25. Milla’s husband, Vassilli Porokhnia also spoke of his concerns regarding the application.

26. The Board asked questions of clarification of the Appellant.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 4

27. The Board asked questions of the Clerk who clarified that no residents or concerned partieshad come forward to request further information about the appeal, documents available orthe timeline regarding the Appeal hearing. The clerk also made an apology to the Appellantfor failing to protect her personal information in the original Appeal Package Report. TheClerk also noted that the item had now been properly redacted and posted.

28. Axinia Doering of Turner Valley spoke in favour of the appeal, against the application. Shesuggested that there may be other spaces available in town that would be more suitable forthe location of a cannabis retail establishment.

29. The Chair asked if anyone involved in the hearing would like to speak in favour of theappeal.

30. Katie Bakken of Turner Valley spoke in favour of the appeal, against the application.

31. The legal representative, James Lozinski, of the Applicant for the Development Permit,Mountain Air Cannabis represented by Jesse & Heather Wasylyshen, made theirpresentation.

32. The Board asked questions of clarification of the Applicant. Mr. Lozinski and Ms.Wasylyshen responded.

33. The Chair asked if anyone involved in the hearing would like to speak in opposition to theappeal / in support of the Applicant.

34. Warren Tuttle, of Turner Valley, spoke in favour of the Applicants and in support of thedevelopment.

35. The Chair asked if anyone in attendance would have any follow up questions of any otherperson involved in the hearing.

36. Katie Bakken spoke to whether the ‘spirit of the law’ applies with regard to a childcare facilityor family-friendly recreational facility being akin to a school in reference to condition 11.9.1.c.

37. In response, Judy Mackenzie and Michelle Ouellette, Director of Development andInfrastructure, spoke to the legislation and bylaws in place regarding the permitting ofcannabis retail establishments and reinforced the definitions of terms used in condition11.9.1.c.

38. Milla Kerusenko asked questions regarding enforcement of the prohibition of consumptionon the site as well as the appearance of the signage to be used by the business. Sheadditionally raised a question of conflict-of-interest.

39. Michelle Ouelette responded to all three questions.

40. The Chair asked for closing summary statements from the hearing participants.

41. The representative for the Applicant of the Development Permit made his closing comments.

42. Katie Bakken submitted closing comments in support of the Appellant.

43. Vassilli Porokhnia submitted closing comments in support of the Appellant.

44. The Appellant submitted closing comments.

45. The Development Authority representative presented closing comments.

46. Chair Beacom asked if all those involved in the hearing felt that they had been heard andthat they had received a fair hearing.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 5

47. The Appellant brought forward a concern that not enough people were notified or given achance to speak to the appeal.

48. The Chair disagreed, stating that everyone who turned up to the hearing was given theopportunity to speak.

49. The Appellant agreed that everyone who attended the Hearing had the opportunity to speak.

50. Chair Beacom gave his closing address and concluded the Hearing at 11:50am.

51. The Board went into closed session at 12:00 p.m. to deliberate on their decision.

52. The Board returned from closed session to the open meeting at 12:25 p.m.

53. Carl Fisher made a motion to Deny the appeal. Motion was carried unanimously.

54. Chair Beacom adjourned the meeting at 12:30 p.m.

FINDINGS OF FACT

The Board heard and considered the Development Officer, Ms. Judy Mackenzie’s, written report

and verbal summary.

They also heard and considered commentary from Ms. Michelle Ouellette, the Town’s Director

of Development and Infrastructure.

The Board heard and considered the Appellant, Milla Kerusenko’s reasons for appeal, written

submissions, and verbal summary, including an additional late submission made by the

Applicant which is attached in Appendix B.

The Board also heard and considered the verbal presentation made by the Appellant’s husband,

Vassilli Porokhnia.

The Board heard and considered the Applicant, Mountain Air Cannabis represented by Jesse

Wasylyshen and Heather Wasylyshen and their legal council James Lozinski’s, verbal

presentation.

Two members of the public spoke in favour of the Appellant; Axinia Doering and Katie Bakken,

both residents of Turner Valley.

One member of the public spoke in favour of the Applicant, Warren Tuttle of Turner Valley.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 6

DECISION

Having been satisfied that notice of this hearing was provided in accordance with the

Municipal Government Act, R.S.A. 2000, Chapter M-26;

And upon having read the materials provided, and upon having heard the presentations

from the Agents for the Appellant, Agents for the Applicant, and the Development Authority for

the Town of Turner Valley as well as parties in support of both the Appellant and Applicant with

respect to the appeal filed in accordance with Section 685 of the Municipal Government Act by

the Appellant, Milla Kerusenko, against Development Permit 21-20D that was issued by the

Town of Turner Valley on November 19, 2020 on lands identified as Lot 6 & 7 Plan 2474DN,

commonly known as 130 & 132 Main Street NW Turner Valley;

The Intermunicipal Subdivision and Development Appeal Board for the Town of Turner

Valley, Town of Black Diamond and Village of Longview (the "Board") has decided to:

Deny the Appeal.

The decision of the Development Authority stands. A development permit shall be issued.

REASONS FOR DECISION

The Board considered the testimony of the representative from the Town of Turner Valley, the Agents for the Appellant and the Agents for the Applicant, as well as parties in support of the Appellant and Applicant. In consideration of this and of the items summarized within the ‘Findings of Fact’, the Board found:

1. Regarding the Location of the proposed development on Main Street:

As a cannabis retail establishment is a discretionary use within the Central Business District, the

ISDAB’s task is to determine whether the proposed development is reasonably compatible with

neighbouring uses or can be made reasonably compatible with neighbouring uses through the

imposition of appropriate conditions on the approval. The Board considered the context of the

proposed development, applicable legislation, applicable plans and policies, the Bylaw

provisions, other applicable guidelines, sound planning considerations and the merits of

the application

It was determined by the Board that a cannabis retail establishment is appropriate for the Main

Street of Turner Valley, given the conditions detailed on the development permit as well as the

conditions imposed on cannabis retailers by the Alberta Gaming and Liquor Commission

(AGLC).

The Board emphasized that because cannabis is now legal in Canada, the occurrence of these

establishments is a fact of life. Cannabis establishments are viewed similarly to liquor stores.

There is a liquor store on the next block directly across from the swimming pool, and even

though advertisement is permitted to be seen in liquor stores, the location garners no special

attention from children or youth.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 7

2. Regarding the location being in proximity to recreational facilities frequented bychildren:

The Board considered the development’s proximity to recreational facilities including the public

library, swimming pool, splash park, skating rink, public park and walking trails.

It is established that minors will not be permitted to enter the establishment in accordance with

AGLC regulations.

The Board decided that the Applicant’s development, which intends to use muted exterior colors

and signage, and will have opaque window treatments that will not permit passers-by to be able

to see into the establishment, would not serve as a particular attractant to youth or children, or

appear out-of-place in a family-friendly zone.

The Board emphasized that the Appellant and Development Authority should exercise good

judgement regarding the appearance and approval of exterior signage – in order that it not

serve as an attractant or point of fascination for children or youth.

3. Regarding location being in proximity to a childcare facility:

The Board considered the proximity to the approved childcare facility nearby. They considered

whether the ‘spirit of the law’ should be applied with regard to a childcare facility being akin to a

school in reference to condition 11.9.1.c.

The Board decided that the prohibitions found in Land Use Bylaw 03-869 regarding proximity to

a school, school reserve, or provincial healthcare facility did not apply to other childcare uses.

The Board took into account that schools are typically found in areas zoned as residential, in

which cannabis retail is not permitted.

The Board’s opinion was that, since no onsite consumption is permitted (nor any public

consumption as per Bylaw 18-1085 Smoking and Vaping – Sec 3.1-3.3 inclusive, including

penalties found in Section 4) and that the development consists only of a retail location, that

children passing by should not be affected by its presence, appearance, or clientele.

4. Regarding public consumption:

The Board considered the applicant’s concerns regarding the public consumption of cannabis.

It is decided that since public consumption is not permitted in any public spaces in town, that

this is not a valid planning concern, and that the matter is deferred to town administration and

municipal enforcement to enforce this bylaw.

5. Regarding disproportionate number of cannabis and alcohol vendors in thecommunity:

The Board considered the number of alcohol and cannabis vendors in the community. Since

there is no other cannabis retail locations within the Town of Turner Valley itself, the Board

dismissed this assertion.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 8

6. Regarding concerns over Cannabis’ effects on society, especially youth

The Board heard the appellant’s concerns regarding the effects of cannabis on members of

society, but as this is not a valid planning concern, it was not considered.

7. Regarding municipal permissions of cannabis retail

The Board recognizes that the Town of Turner Valley Council and administrations went to great

lengths to Develop the Municipal Cannabis Strategy and amendments to the Land Use Bylaw in

2018 when cannabis was legalized across Canada.

The Board finds that the bylaws in place are in line with neighbouring jurisdictions and are

satisfactory in their ability to adequately protect the public from loss of enjoyment of public

spaces.

Since these matters fall outside of the jurisdiction of the ISDAB, they were not considered.

8. Regarding costs to file the Appeal

The Board recognizes that the appellant was charged the incorrect fee to file her appeal, and

that the Development Authority has recognized this error and will refund the difference to the

Appellant.

Regarding the cost to file the appeal, the Board wishes to impart to the Appellant that the cost to

advertise for and hold ISDAB appeal hearings including staff time and legal council, are

significant, and that this cost is ultimately borne by the taxpayers of the municipality. The cost

to file an appeal is fair given this consideration.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 9

CLOSING

This decision may be appealed to the Alberta Court of Appeal on a question of law or

jurisdiction. If you wish to appeal this decision, you must follow the procedure found in Section

688 of the Municipal Government Act, R.S.A. 2000 Chapter M-26 which requires an application

for leave to appeal to be filed and served within 30 days of this decision.

If a permit issued in accordance with the Notice of Decision is not commenced within Twelve (12) months from the date of issuance and completed within Twenty-Four (24) Months of issuance, the permit is deemed to be void unless the time for commencement or completion of the development is extended by the Town of Turner Valley.

Dated at the Town of Town of Turner Valley, in the Province of Alberta this 18th day of January,

2021, and signed by the Chairman of the Intermunicipal Subdivision and Development Appeal

Board who agrees that the content of this document adequately reflects the appeal hearing,

deliberations and decision of the Intermunicipal Subdivision and Development Appeal Board.

INTERMUNICIPAL SUBDIVISION AND DEVELOPMENT APPEAL BOARD

___

Gar Beacom, Bridget Lacey,

ISDAB Chairman ISDAB Clerk

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 10

APPENDIX “A”

Persons who were in attendance, made submissions or gave evidence at the hearing:

Name – Municipality of residence or Organization represented - Capacity

1. Gar Beacom - Calgary - ISDAB Board Member, Hearing Chair

2. Kara Rusk – Turner Valley - ISDAB Board Member

3. Carl Fisher – Black Diamond - ISDAB Board Member

4. Graham Cannon – Turner Valley - ISDAB Board Member

5. Tom Weber – Turner Valley - ISDAB Board Member

6. Milla Kerusenko – Turner Valley - Appellant

7. Vassilli Porokhnia – Turner Valley – Spouse of Appellant

8. Jesse Wasylyshen – Okotoks - Applicant

9. Heather Wasylyshen – Okotoks – Spouse of Applicant

10. James Lozinski – Okotoks – Legal Representative of the Applicant

11. Axinia Doering – Turner Valley – Spoke in favour of the Appellant

12. Katie Bakken – Turner Valley – Spoke in favour of the Appellant

13. Warren Tuttle – Turner Valley – Spoke in favour of the Applicant

14. Judy Mackenzie - Town of Turner Valley - Development Officer

15. Michelle Ouelette – Town of Turner Valley – Manager of Development and Infrastructure

16. Heather Thomson – Town of Turner Valley – ISDAB Clerk

17. Bridget Lacey – Town of Turner Valley - ISDAB Clerk

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 11

APPENDIX “B”

Exhibits received before and during the hearing.

Exhibit A – Appeal Package Report including:

1. January 20, 2020 Hearing - Order of Proceedings

2. Notice of Appeal Hearing

3. Information Regarding Appeal Hearings

4. Newspaper Advertisement of Appeal Hearing

5. Notice of Appeal

6. Receipt of Payment for Appeal

7. Reasons for Appeal

8. Map of Properties relevant to the Appeal

9. November 18, 2020 Notice of Decision with conditions

10. Administrative (Planning & Development) Report

11. Development Permit Application 21-20D

12. Minutes of November 18, 2020 MPC Meeting

13. Planning & Development Report from November 18, 2020 MPC Meeting

Exhibit B – Submission made by the Applicant on the day of the Hearing (January 6, 2021):

1. Document “CANABBIS (sic) STORE PERMIT APPEAL HEARING TOWN OF TURNER

VALLEY - January 06, 2021” (see page 12, attached)

CANABBIS STORE PERMIT APPEAL HEARING TOWN OF TURNER VALLEY

January 06, 2020

Dear members of the Intermunicipal Subdivision and Development Appeal Board,

On behalf of Vassili Porokhnia, Natalia Kerusenko, Emmanuel Kerusenko, Zoe Dobbyn and

Axinia Doering and myself we are appealing the November 18, 2020 decision of the Municipal

Planning Commission regarding application 21-20D. That being said, we respectfully ask that

the hearing be postponed for the following reasons:

•The timing of the hearing is problematic for a number of reasons 1) the advertisement in the

local newspaper took place during the Christmas holiday break (Dec. 30

th), 2) the hearing date is two business days into the new year, 3) the Town office was closed

over Christmas and New Years so not only we could not reach out to staff with questions arising

in the appeal package but the general public had no way of reaching staff during the Christmas

break to find out more about the appeal or get a copy of the appeal package, and 4) we heard

from a number of residents who just found out about the appeal and that a cannabis store was

approved on Main Street via a Facebook Post on January 5

th. And then when they went to the Town’s website they were not able to find any information or

even a link to information regarding the appeal. If you look at the Town online calendar there is

no reference to the appeal hearing today. We respectfully request the hearing be postponed

and that the public be given proper notice of the hearing as well as easy access to information

regarding the appeal and all supporting documents.

•In preparing for the hearing we went to the Town’s website to review the various sections of the

Town’s Land Use Bylaw referenced in the staffs reports and we were unable to find any

reference to section 11.19 (cannabis) in the Land Use Bylaw.

◦https://turnervalley.ca/wp-content/uploads/2013/11/Bylaw-03-869-Land-Use-Bylaw-

Consolidated.pdf

We respectfully ask that Town staff provide us with a copy of the most current Land Use Bylaw

that references all sections referred to in their staff reports. And that we be given adequate time

to be able to review the correct Land Use Bylaw in preparation of our appeal along with any

other sections that may be relevant to this appeal.

•There is some confusion/inconsistency as to which set of documents will be presented at the

appeal hearing. We have been provided with a 42 page package which just references the

page number in the bottom right corner, while there is another appeal package available on the

Town’s website (

https://turnervalley.civicweb.net/document/50423

) which is 60 pages in length and references pages in the bottom right corner as ‘page # of

60’). Which package are the Board members going to be reading from so we can ensure we

are not incorrectly referencing, for example page 19 of the 42 page document package vs page

37 of the 60 page document which contain the same information?

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 12

In addition, we would ask that town staff refund our application in whole or in part as it was

brought to our attention that we were over-charged. When I filed my appeal in person, I was

required to pay $250.00 as evidenced by my receipt in the appeal package. However, if you

look at the Town’s fee schedule

https://turnervalley.ca/wp-content/uploads/2019/11/MP.A.02.00-Office-Fee-Schedule-

amendment-19May06-Fee-Schedule-for-Distribution.pdf

you will note that the fee for a Development Permit is in fact only $200.00. It is unfortunate that

the Town felt the need to charge a fee in the first place whereas some towns are/have been

forgoing planning fees last year because of the hardship created by the Covid-19 pandemic.

We seek clarification with respect to the Clerk’s statement within the Notice of Appeal Hearing

(page 4 of the 42 page appeal package) which says “requirement for anyone interested in

speaking at the hearing having to come forward 24 hrs prior to hearing and register. “ It is

understanding that the Appeal Board needs to determine who is entitled to be heard and who is

affected enough to be heard. How does that occur when staff is determining who can and can’t

come before the Appeal Board at the hearing? I understand Covid-19 has placed some

limitations on how public meetings/hearings can be held, however I fail to see the reasoning

behind not allowing someone to participate in the hearing because they did not ask permission

of staff 24 hours prior to the start of the hearing. I am sure the video-conference link information

can be made available to anyone up until the actual start of the hearing at which time the

Appeal Board can decide if that individual should be heard. People have work commitments,

child care commitments and may not know their availability to attend the hearing until the

morning of the hearing, so it would seem unfair that staff would restrict members of the public

from participating in what is supposed to be a fair and open process.

Finally, I was very surprised and disturbed to see in the appeal package that all my personal

contact information (as well as that of the applicant) has not been whited out in the appeal

package which was placed on the Town’s website for all to see.

It would appear that Town staff have violated Section 38 of the Freedom of Information and

Protection of Private Act which states

“The head of a public body must protect personal information by making reasonable security

arrangements against such risks as unauthorized access, collection, use, disclosure or

destruction.”

Considering some of the negative and inappropriate comments posted on social media

yesterday regarding our appeal request, I am concerned that having staff publicize my personal

contact information may result in harm to myself and/or my family. At a minimum I would ask

that staff issue an apology for this misuse of public trust and violation of the FOIP act, and that

all documents on the Town’s website be removed immediately and properly redacted when the

application is reposted as a result of our postponement request.

On behalf of Vassili, Natalia, Emmanuel, Zoe, Axinia and myself we trust that you as the Appeal

Board will find our reasons for seeking a postponement valid be will ensure procedural fairness

in the appeal process by adjourning the hearing to a future date so as to ensure us proper time

to prepare for the hearing with the correct information as well as ensuring proper notice to the

general public.

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 13

Respectfully,

Milla Kerusenko et al

ISDAB Appeal 2020-01 Decision January 18, 2021 Page 14