Oct. 23, 2015 - Parkland County re: Spruce Grove Gun Club

INFORMATION RELEASE

SDAB renders decision on Spruce Grove Gun Club appeal.

PARKLAND COUNTY, AB. – After considering evidence presented from area residents,

concerned citizens, and the Spruce Grove Gun Club itself, Parkland County’s Subdivision and

Development Appeal Board (SDAB) has decided to uphold the appeal and deny the

development permit.

In its decision, the Board considered the question of land use and the compatibility of the use

with the neighbouring uses. As noted in the reasons for decision, the Board determined the

gun range was not compatible with the neighbouring uses.

A copy of the Subdivision and Development Appeal Board’s decision is attached for ease of

reference.

The decision of the Subdivision and Development Appeal Board can be appealed to the Court

of Appeal of Alberta on a question of law or jurisdiction pursuant to Section 688 of the

Municipal Government Act. An appeal requires an application for leave be filed with the Court

of Appeal within 30 days of receipt of this decision.

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Parkland County is a rural municipality located immediately west of Edmonton. Covering an area of

242,595 hectares (599,500 acres), it is one of the largest in size and one of the highest populated of all

rural municipalities in Alberta. Parkland County has grown to a community of over 30,000 people and

has seen generations of families continue to enjoy country living.

For more information about this release, please contact:

Sarah Mate

Communications Coordinator

Phone: 780-968-8432

Email: [email protected]

October 26, 2014

FOR IMMEDIATE RELEASE

Dept. Approval: ______________________ Date: _____________ CAO Approval: ______________________ Date: _____________ Release on: _______________________________

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SUBDIVISION AND DEVELOPMENT APPEAL BOARD PARKLAND COUNTY

Legislative & Administrative Services Parkland County Centre 53109A HWY 779 Parkland County, AB T7Z 1R1 Telephone: (780) 968-3234 Fax: (780) 968-8413 DATE: September 28, 2015 and October 8, 2015 FILE NO.: 09-D-098

Notice of Decision of Subdivision and Development Appeal Board

INTRODUCTION [1] The Development Authority of Parkland County (the “County”) approved, with conditions, a development permit to renew Development Permit No. 09-D-098 (the “Development Permit”) for Indoor/Outdoor Recreation Services (gun range) on NE 28-53-27-W4M, Municipal Address: 53426A Range Road 273 (the “Site”). Thirteen property owners or residents in the vicinity of the Site appealed the Development Permit. [2] The Subdivision and Development Appeal Board (the “Board”) heard all appeals at the same time, and is issuing one decision in relation to all of the appeals. PRELIMINARY MATTERS A. Board Members [3] At the outset of the appeal hearing, the Chair requested confirmation from all parties in attendance that there was no opposition to the composition of the Board hearing the appeals. None of the persons in attendance had any objection to the members of the Board hearing the appeal. B. Additional Materials [4] The matter first came before the Board on September 28, 2015. Although a number of documents were filed by the parties to the appeal before September 28, 2015, various parties filed additional materials at the outset of the hearing on September 28, 2015. On that date, the Board adjourned the hearing to October 8 and, if required, October 9, 2015, for two reasons:

a) due to the disclosure of more evidence at the start of the hearing on September 28, 2015; and b) one member of the Board had withdrawn, and the replacement member had not had sufficient time to review all the materials on September 28, 2015.

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[5] The Board adjourned the hearing to provide sufficient time for all persons – the appellants as well as the applicant, and any other person wishing to speak to the matter, to review and respond to the material. In addition, the Board wished to provide sufficient time for the replacement member to go through the materials prior to the hearing. On September 28, 2015, the Board directed that if any person wished to file further material, they would have to file their materials no later than October 1, 2015. [6] There were no adjournments requested at the start of the hearing on October 8, 2015. C. Miscellaneous [7] The Board marked the exhibits as set out at the end of this decision. [8] The appeals were filed on time, in accordance with Section 686 of the Municipal Government Act, R.S.A. 2000, c.M-26 (the “Act”). [9] The Board is satisfied that it has jurisdiction to deal with this matter. There were no objections to the proposed hearing process.

SUMMARY OF HEARING [10] The following is a brief summary of the oral evidence heard by the Board. The Board has also reviewed all written submissions filed with the Board. [11] The Board first heard from the Development Authority. [12] The Development Authority provided an overview of the Development Permit. The applicant, the Spruce Grove Gun Club (the “Club”) had previously applied for a development permit for an Indoor/Outdoor Recreation Services (gun range). A development permit was granted in 2014, but was time limited to November 9, 2015. The Club had not proposed any changes to the current operation or current site. The Chief Firearms Officer inspected the Site, finding all ranges met the Fire Arms Act and the Regulations. The Club conducted noise impact studies for the range operation in accordance with the Board’s 2014 decision. The noise impact studies showed that for each month tested, the results were below the decibel levels set out in the County’s Community Standards Bylaw 03-2012 (the “Bylaw”). The Club was in full compliance with all conditions, and the Development Authority issued the Development Permit with the conditions set out. The County’s senior assessor confirmed there was no decrease in the property values in the area of the Club. The Club provided a reclamation plan, and because the Club is on privately-owned lands, the responsibility for clean-up is with the landowner, not the County. No environmental impact study was requested. [13] The Board next heard from the appellants or their representatives.

[14] Mr. Jody Singer and Ms. Laurie Boise presented first. Mr. Singer lives in close proximity to the Club (approximately one half mile south). He had concerns in relation to safety, noise and traffic and environmental concerns. He advised that he had concerns about bullets escaping from the property. There is an increased amount of traffic on the roads, and some drivers do not obey traffic signs. The Club’s noise monitors have been placed in the worst

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possible location, and do not accurately reflect the noise levels. He has concerns in relation to the lead contamination coming from the Club’s use of the Site, and lead getting into the food chain.

[15] Mr. Lee Santon’s submissions were presented to the Board by Ms. Cheryl Ball. Mr. Santon lives west of the Club in Landmark Estates. He stated that it is noisy to be outside when the Club is operating. He has friends who live north of the Club, who are worried about their safety. He questioned what the County’s liability would be should someone be killed by a stray bullet, and whether the County would have to pay for the environmental clean up after the Club shuts down. He questioned whether the use was an outdoor recreational facility or a business operation.

[16] Mr. Scott Bradley lives approximately 1 mile directly north of the Club. He was concerned that his lands are zoned Country Residential (CR) and are in the safety zone of the Club, although he did not know that his land was in the safety zone when he bought his property. He is concerned about the risk of being shot. He does not feel comfortable working on the land, and when he works outside, he stays close to the trees to get some protection from stray bullets. He will only work in exposed areas at night after the Club shuts down. He stated that cyclists and motorists on Township Road 540 are at risk of being shot. He will not subdivide his land at the present time due to the presence of the Club. He feels his property value is suppressed due to its location in the safety zone. He has heard how bullets ricochet. He worries he is at risk for stray bullets. He has not found any stray bullets on his property, but has no buildings into which they would go.

[17] Mr. Cheryl Ball lives north of Range Road 273. She provided the Board with an overview of her experience with the County in relation to its approval of the previous development permits for the Club. She felt that the residents had been misled by the County. She stated that there had been a stray bullet in March, 2013. The noise monitoring was not a good approach because it put the onus on the neighbours to complain. The Club’s noise expert did not, but should have, referenced the RCMP “Shooting Ranges” document, which has been included in the submissions before the Board. The noise is an impulse noise, which has a significant impact and the noise should be measured at the point of reception. Although the Club may be compliant with the County’s Bylaw, the Bylaw does not adequately address the noise issue of the neighbouring residents. There were 80 noise complaints in total to the County, and 34 were in the May, June and July 2015 period. She referenced the Burnco case, indicating the use which the Club seeks is discretionary, arguing against its approval. There are safety concerns for the neighbours due to stray bullets in the safety zone. There is a new gun range in Edmonton and she felt the Club should be shut down as the new range can be used. She did not feel the Club is compatible with a Country Residential zoned area. [18] Mr. Jeff and Mr. Leanne Smith supplied audio files of the noise from the deck of their home. Their home is close to the Club and close to one of the monitors. They have noise recordings which report levels over 100 decibels at times. These levels were determined by a purchased application (called DBA) installed on their iPad, which was then converted automatically to a spreadsheet. They have submitted the information (Exhibit 48) and they played the recordings for the Board during the hearing. The information they provided was 5 minutes of data which indicated 29 shots over a 5 minute period that were over 90 decibels. There is little improvement in the Club’s efforts to communicate or work with the residents.

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They have concerns for the safety of their neighbours and the long term environmental impacts. They have a suffered a loss of enjoyment of their property, which they should be able to expect. They agreed that their sound recordings were not “expert” evidence, but stated that the recordings clearly evidence the noise of the gun shots. In response to the Club’s evidence, Mr. Smith advised that he has heard the calls from skeet shooting (the call “Pull” and then the “bang, bang” of the shotgun being fired). The noise is not moderate. They had never heard gunshots outside of the hours of operation of the Club.

[19] Mr. Allen and Ms. Rhonda Lakeman live approximately 1 mile north of the Club, in the safety zone north of Township Road 540. Their first concern is safety. They have had neighbours who have had bullets go over their head. They believe the bullets have come from the Club. They have heard of 7 stray bullets in their immediate vicinity and they outlined where the bullets went, including one in Chad Scott’s shop, but they don’t know the date. Other bullets affected Mr. and Ms. Gamble, and one went past the DeGeers’ house. These incidents occurred since 2004. They confirmed that there were no bullets on their own property. There had been no incident with a bullet in the past year. Their second concern is noise which they say is constant. They hear the sounds from the Club, but indicated the noise is louder for their neighbours south of the Club. Their third concern is property values. One of their neighbours had his property for sale until the potential purchaser asked if there was any issues with the gun range. The owner had to disclose the fact that an outbuilding was struck with a bullet, and the sale was lost. They have a concern with their buildings being hit with a stray bullet, and how it would affect the saleability of their property, and the effect of the noise on the saleability of their property. They also feel that the permit is not a recreational use, but a business operation. Tactical training for other forces is not a recreational use. [20] Kate Hurlburt, of Emery Jamison LLP, spoke on behalf of her clients, the DeGeers who live in the Poplar Ridge subdivision approximately 1.8 km north of the Site. Ms. Hurlburt reviewed the affidavit of Mr. DeGeer, which was submitted to the Board. He stated that the noise is so loud, it drives him inside. Being outside diminishes any pleasure of being outdoors. Even indoors, the house shakes due to the firing of bullets. The noise is always an annoyance and is unbearable. Because the noise is unpredictable, the impact is higher. Ms. Hurlburt outlined the technical information about the sound and its impact on humans. She took the Board through the documents she had presented in her submissions, highlighting the negative impact of impulse noises. Impulsive noise triggers a “fight or flight” effect. Noise can get louder over distance, which is why the measurement of sound should be at the point of reception of the noise. She drew the Board’s attention to the Ontario Ministry of Environment information about the maximum levels for impulsive sound, which is at no more than 45 dBAI during the day and 40 dBAI at night. She submitted the Rossdale Community League case to advise the Board that when they consider discretionary uses, they should consider the intensity of the use and its compatibility with the uses of adjacent properties. Ms. Hurlburt submitted that the gun range is not compatible with the use of properties as homes. The Board has Mr. DeGeer’s sworn evidence about the impact which is disruptive and can last whole days on the weekends, and evenings in the summer. It drives people indoors and even then is a distraction. She refuted the noise levels presented by the Club as not being reflective of the conditions experienced by the neighbours. All of the DeGeers’ noise complaints happened during Club hours. The DeGeers’ position is that the everyday operation of the Club destroys their peace and quiet and prevents them from using their property. The use is incompatible

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with country residential homes. It is not compatible and she asked the Board to refuse the permit. [21] Ms. Teresa Kessir and Mr. Tony Hoshowski live 500 m south of the Club. Their concerns are noise, safety and the environmental impact. The noise is excessive and not fleeting. They felt the noise studies conducted by the Club did not take into account the factors affecting sound propagation, including meteorological factors and topography. They hired an acoustical engineer to do a study. Although the Club’s noise level may not breach the limits in the County’s Bylaw, the Bylaw does not adequately capture the impact. They questioned how the Chief Firearms officer could approve the Club. They felt that the amount of lead in the water would be significant and that livestock and people would be affected and that reclamation costs would go up over time. They indicated that there was no way to mitigate the impact the noise was having on them. They reviewed the noise levels in other municipalities. They cannot host events at their property because their guests are concerned for their safety. They cannot escape the noise, even with the windows closed. Ms. Kessir cannot study in her house on the weekends due to the noise. They purchased their property for a quiet rural setting, and did not expect to be exposed to repetitive noise on a daily basis. [22] Mr. Gordon and Ms. Janet Carter live north of the Club, north of Township Road 540. She is afraid of stray bullets, and does not like the disruption of the enjoyment of her property. She played the Board a recording on her iPhone of the noise from the Club, and submitted videos which also had the sounds. She told the Board that the noise had a significant impact. She felt the Club is not compatible with the surrounding residential subdivision.

[23] Mr. Allan Gamble lives approximately one half mile north and east of the Site. He questioned whether a gun range fell within the definition of outdoor participant recreation service use. His concerns are public safety, noise and the negative impact on property value. He referenced bullets leaving the range in the 1970s and 1980s. He stated the most recent incident of a stray bullet was a year ago, but felt there was a significant risk that bullets will leave the Site and hit a person. The noise level is unbearable and has robbed them of the quiet use of their property. The property values are affected by being in proximity to the Club.

[24] Ms. Cheryl Ball and Mr. Greg Miller spoke on behalf of the community group. Ms. Ball noted the effect of the noise on the residents in the area, who must turn up their TVs and who cannot invite guests due to the safety concerns. She is concerned about the impact of the noise of gunfire on the children in the area. She read Mr. Gamble’s statement in which he stated that 2 bullets have gone past him on two different occasions. The first was 5-6 years ago, and the second was 3 years ago. Mr. Miller provided the Board with a diagram showing how the safety zone would be laid out in the United States. He stated the area around the Site is limited to hunting with bow and arrows. He stated there was a risk of a stray bullet leaving the Club, and that it could occur for a number of reasons, which he outlined.

[25] Mr. Joel Babineau lives in the Poplar Ridge Estates approximately 1.8 km northeast of the Site. He is concerned about safety because a bullet flew past him when he was working outside. He is concerned about his daughter’s safety. He is a neighbor to the DeGeers, who found a bullet on their property. He is also concerned about the loss of enjoyment of his property due to the noise from the Club. He feels property values in the area are decreased

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due to the operation of the Club. He did not feel the Club and country residential development should be in the same area.

[26] The Board then heard from the Applicant, the Spruce Grove Gun Club.

[27] Mr. Keith Wilson, of K. Wilson Law Office, was Counsel for the Club. Mr. Bill Newton and Mr. Grant Kirkup, Club members, also spoke on behalf of the Club. Mr. Wilson advised that the noise reports prepared by ACI, the acoustical engineers, were recorded instantaneous readings. Further, he stated that the monitoring devices are omni-directional. Those monitoring devices indicated there is gunfire north of the north monitor, which means that the shooting is occurring outside the range.

[28] Mr. Kirkup advised the Board that the range is in full compliance with the monitoring conditions imposed by the Board in its August, 2014 decision. The Chief Firearms Officer did a safety inspection and the range is fully compliant with that inspection. Mr. Kirkup showed the Board a video of the Site and the various ranges. He stated that the gate to the Club is always locked and there is a passcode on that gate. The Club keeps cameras for each shooting position and the recordings from those cameras are kept. The bales at the top of the ranges are flax and not animal feed. The berm height is 80 ft. and not 26 ft. as is required in the United States. For each shift, the Club completes documentation. There is a maximum shooter to range safety officer ratio of 5 to 1. All members must scan their cards to access the site and there is picture id on the cards. Anyone attending as a guest must be taken by a member to the gate to get out. Perimeter signs are in place as approved by the Chief Firearms Officer. There are 12 signs around the perimeter warning of the nature of the occupation. The range has no steel core ammunition, which was banned due to its tendency to ricochet. It has been banned for some time. No projectiles leave the range under current conditions. There have been no reports of any bullets leaving the site since August to the date of the hearing. The Club has not been notified of any bullets leaving the site and the Chief Firearms Officer is not aware of any others. [29] Mr. Newton advised that the Club has noticed gunfire damage to County traffic signs outside of the range. He stated that they began their survey in 2013 based upon complaints of shooting when no one was on the range. The survey shows 20 locations around the area of the Club, with the most troubling being the sign in front of the Rolling Hills subdivision. The Club recognizes that the complaints are genuine and the residents are hearing bullets, but they question whether the bullets have come from the range, suggesting that they may be coming from illegal and unsafe firearms use outside the Site. [30] Mr. Kirkup advised the Board that the Club does not exceed the noise levels set out in the County’s Bylaw. While there may be loud noises approaching or exceeding the Bylaw, they do not come from the range. The Club hired an independent acoustical engineer who prepared the reports submitted as part of the Club’s submissions. There are 5 rifle ranges, 4 pistol ranges, and 2 shotgun ranges. The expert took all of the data and modelled the noise, then extrapolated that to the receptor numbers. Ninety-seven residences were modelled. He came up with what noise level would be at those receptors. The acoustical engineer conducted his study in two ways, one is as if all 11 ranges discharged in one second simultaneously. The loudest noticed receptor site was at 97 decibels with the average of all receptor sites at 72.2 decibels. The second manner was modelling if the noise averaged over 15 minutes. The

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loudest using that modelling was 57.3 decibels. Even if one imposed a penalty for the dBAI (impulse noise) of the average of 5-12 dBA (here, 8 dBA), to the 72 decibels if all 11 ranges discharged at the same time, the total decibel reading is 80 decibels which remains below the Bylaw level. The machines used for the noise monitoring were calibrated monthly with a 0.1 dBA differential. He stated the recordings do show loud noises, and they are from guns, but they are not from the range. [31] He commented that the noise report provided by Mr. Hoshowski and Ms. Kessir did not provide any measurements of noise levels at their property. Further, that acoustical engineer had no comments on the Club’s acoustical engineering report. In essence, there was no contradictory evidence to the noise reports presented on behalf of the Club and nothing to suggest that the levels were louder than what the Club said that it was based upon its expert evidence. The Club’s professional acoustical engineer has suggested the RCMP Shooting Ranges and Sound study solely reviews various guidelines, limits for shooting noise and requirements, it does not recommend levels. The Club has responded to all complaints. None of the gunfire noises exceeded the Bylaw limits. Some of the complaints occurred outside the time of day of Club operation. Mr. Kirkup took the Board through excerpts of Exhibit 27 (pages 2/115), showing that the gunfire noise could only have come from outside the range due to the direction of the bullet and the fact that on one occasion gunfire occurred between 9:00 am -11:00 am before the range opened at 11:00 am. In relation to environmental concerns, the Club has a land reclamation plan in place. Liability rests with the range and the owner so there is no risk of exposure to the County for environmental cleanup. In relation to water contamination, arsenic and manganese are prevalent in the area. The water record presented by Mr. Philpot shows a stamp on the document from Alberta Health Services that it has been reviewed and signed by senior toxicologists. Had there been any concerns, Mr. Kirkup argued, they would have raised a concern at that time. Alberta Health Services came to the site in October, 2015 and the impression that they left was that there was not much chance of lead contamination to the ground from the range. [32] In relation to the concerns of arsenic or manganese in the water wells, the Club presented a map prepared by Alberta Health Services showing that the Club is in the middle of an area identified by Alberta Health Services as having potential water concerns. [33] In response to the question about lead being buried on old ranges, Mr. Wilson advised that they had looked at historical photos. The range footprint is the same but has expanded to the east. There is no evidence to support that old ranges have been covered over with soil. The berms have been added to the east, comprised of clear fill. The face of the berm has no vegetation and is upright. [34] Mr. Newton advised that the Club has a sandy aggregate on the floor which is to assist to prevent ricocheting. They have moved the shooters off the ground to prevent ricochets so that the shooter cannot depress the barrel and hit the floor of the range. Further, there is supervision to prevent inexperienced shooters from having a bullet leave the range. The berms are high, the Chief Firearms Officer has indicated that the berm must be 6 metres, but is 81 feet (four times the required height). All of the berms and backstops are taller than required by the regulations. There is closer provision of shooters by the range safety officers.

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[35] The Club advised that they are busiest between May and late September, particularly in warm weather. The range is busy on the weekend because members have time off to go there. Mr. Kirkup advised that there was one tournament between 9-3 in the previous year and none the year before. Of the activities on the range, 15% is law enforcement, but the revenue generated is by honorarium, making up less than 10% of their revenue (approximately 6-7%). On the shotgun side, competition is approximately 1%, the rest is recreational. On the pistol side, 20% is competitions and 80% is recreational. In the rifle ranges 90-95% is recreational. [36] 255 of their members are from the Tri-County area of a total of 900 members. 320 of those members use the range 5 times or less in a year. 47% of the members use the range less than 1 time in a year. 320 use it 5 or less times and 201 use it 6 or more times. [37] Mr. Wilson advised they recognized the neighbours are concerned. However, the Chief Firearms Officer has inspected the range and it is continually inspected. They have updated safety procedures. The area is a broader mixed area with mixed use. The noise levels are consistent with the level of noise in mixed use areas with trucks and farm equipment. The range has been there since the 1970s. The majority of those who have presented either knew the range was there or ought to have known it was there. The level of noise is lower than that prohibited by the Bylaw. They wished to have a permanent approval without a time limitation. [38] At the end of the hearing, the Board heard from Travis VerBeek, he urged the Board to consider the environmental risks from the lead on the shooting ranges which creates a threat to humans and to wildlife. The Board also heard from Ms. Linda MacIntosh who said there should be a stop sign onto Range Road 273 to control traffic onto the range road. The Board notes that although it heard from Mr. VerBeek and Ms. MacIntosh, it placed no weight upon their submissions and it did not form part of the Board’s consideration. The Board has taken this position in relation to their submissions because they were made in closing, rather than during the first part of the hearing (when those in favour of the appeal were heard), and therefore, the Club did not have an opportunity to respond to it. DECISION OF THE SUBDIVISION AND DEVELOPMENT APPEAL BOARD [39] The Board upholds the Appeal and denies the Development Permit. FINDINGS OF FACT [40] The Site is located at NE 28-53-27-W4M, Municipal Address: 53426A Range Road 273. It is located on a quarter section with an agricultural operation to the east. [41] The area around the Site has a number of residential subdivisions to the south and north. [42] The Site is in Country Residential Core as identified in Parkland County Municipal Development Plan Bylaw 37-2007.

[43] The Site is identified as Agricultural and Commercial on Map 2 in the Atim Creek North Area Structure Plan.

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[44] The Site is zoned CR – Country Residential District in Parkland County Land Use Bylaw 20-2009, as amended.

[45] In August, 2014, the Board approved a Development Permit for indoor/Outdoor Participant Recreation Services on 16 conditions. The Development Permit issued in 2014 expires November 9, 2014. [46] The Club has complied with the conditions of the August, 2014 Development Permit.

[47] The gun range is an Indoor/Outdoor Participant Recreation Services use with 5 rifle ranges, 4 pistol ranges, and 2 shotgun ranges.

[48] Indoor/Outdoor Participant Recreation Services is a discretionary use in the CR – Country Residential District. [49] The noise levels modelled by Acoustical Consulting Inc. over both the Leq1second and Leq15minutes are below the levels of 85 dBA Leq15minutes specified in the County’s Community Standards Bylaw.

[50] The noise coming from the Club’s ranges is an impulse noise.

[51] The noise coming from the Club’s ranges is intermittent and unpredictable.

[52] The levels of 85 dBA Leq15minutes specified in the County’s Community Standards Bylaw does not address impulse noise.

[53] The noise from the Club has a negative impact on the appellants, which has reduced the appellants’ use and enjoyment of their property.

[54] The Indoor/Outdoor Recreation Services use is not compatible with the County Residential uses of the appellants.

[55] There have been no reports of stray bullets from the Club between 2014 – 2015.

[56] The Club has implemented a number of measures to prevent bullets leaving the ranges, including prohibiting the use of steel-core bullets, installing sandy aggregate on the floor to assist in preventing ricocheting; moving the shooters off the ground to prevent ricochets so that the shooter cannot depress the barrel and hit the floor of the range; and increasing supervision to prevent inexperienced shooters from having a bullet leave the range.

[57] The licensing and inspection of the Club is the responsibility of the Chief Firearms Officer, a federal official, who has issued his approval for the Club.

[58] The landowner and the Club have the responsibility to clean-up the property.

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REASONS [59] The Board notes that its jurisdiction is found in section 687(3) of the Municipal Government Act. In making this decision, the Board has examined the provisions of the County’s Land Use Bylaw (“LUB”), and has noted the County’s Municipal Development Plan and the Atim Creek Areas Structure Plan, as referenced in the Development Authority’s Report. The Board has also considered the oral and written submissions made by the Appellants, the applicant, and the Development Authority.

687(3) In determining an appeal, the subdivision and development appeal board

(a) must act in accordance with any applicable ALSA regional plan;

(a.1) must comply with the land use policies and statutory plans and, subject to clause (d), the land use bylaw in effect;

(b) must have regard to but is not bound by the subdivision and development regulations;

(c) may confirm, revoke or vary the order, decision or development permit or any condition attached to any of them or make or substitute an order, decision or permit of its own;

(d) may make an order or decision or issue or confirm the issue of a development permit even though the proposed development does not comply with the land use bylaw if, in its opinion,

(i) the proposed development would not

(A) unduly interfere with the amenities of the neighbourhood, or

(B) materially interfere with or affect the use, enjoyment or value of neighbouring parcels of land,

and

(ii) the proposed development conforms with the use prescribed for that land or building in the land use bylaw.

Land Use [60] A number of the appellants questioned the characterization of the use, claiming that it was a commercial use, or did not fit within the definition of an Outdoor Participant Recreation Services use.

[61] Therefore, the first question for the Board is whether the use applied for has been properly characterized as an Outdoor Participant Recreation Services use. Section 20.1 of the County’s Land Use Bylaw provides the following definition for “Outdoor Participant Recreation Services”:

Outdoor Participant Recreation Services means development providing facilities that are available to the public at large for sports and active recreation conducted outdoors. Typical facilities would include golf courses, driving ranges, ski hills, ski jumps, sports fields, outdoor tennis courts, unenclosed ice surfaces or rinks, athletic fields, boating facilities, miniature golf establishments, Scout/Guide camps, religious outdoor retreat camps and parks, paint ball parks, gymkhana/rodeos.

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[62] The Board heard evidence that the Club has 5 rifle ranges, 4 pistol ranges, and 2 shotgun ranges. The Board notes that the majority of the ranges are not enclosed, and the shooting is conducted outdoors. The evidence of the Club was that the activities at the Club were not commercial in nature. If training exercises are conducted on the Site, the user pays an honorarium. The activities are predominantly recreational, and the Board finds that holding competitions does not detract from that recreational aspect of the use. Although “gun club” is not expressly listed in the definition, the definition states that “typical uses include”. The Board finds the use is active recreation, conducted outdoors, thus meeting the elements of the use. Due to the nature of the wording in the definition, other uses which are not expressly listed in the definition may also be an Outdoor Participant Recreation Services use. The Board finds that the use applied for by the Club falls within the definition of Outdoor Participant Recreation Services. [63] None of the appellants questioned the Indoor Participant Recreation Services portion of the application. The Board finds that the use applied for also meets the Indoor Participant Recreation Services definition. Nature of Use [64] The use of Indoor/Outdoor Participant Recreation Services is discretionary in the Country Residential (CR) zone. Therefore, as referenced in Rossdale Community League (1974) v. Edmonton (Subdivision and Development Appeal Board), 2009 ABCA 261, the Board must assess the compatibility of the use applied for with the neighbouring uses.

[14] The object and purpose of a discretionary use is to allow the development authority to assess the particular type and character of the use involved, including its intensity and its compatibility with adjacent uses. ….

[65] The appellants questioned the compatibility of the proposed use on three bases:

a) The noise impact that the Club has on their use and enjoyment of their property; b) Concerns about their safety, arising mainly from the risk of stray bullets leaving

the Site; and

c) Concerns about the environmental impact of the use, particularly, the risk of lead contamination from the bullets, and the risk that lead contamination will affect livestock, thus entering the food chain, and that there will be lead contamination of water wells.

[66] The Board has considered each of these concerns. Noise [67] In relation to noise, the Board notes that the August 2014 permit required the Club to monitor noise levels at various locations which were to be determined in consultation with the County. Further, noise testing was to have been conducted from May 1 to September 30 to

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ensure compliance with the noise levels set out in the County’s Bylaw and to provide the results by the 15th of the next month. The Board heard from the Development Authority and the Applicant that this had been done, and accepts this as a fact. [68] The Board has reviewed the expert evidence submitted by the Club from Acoustical Consultants Inc. and notes that the purpose of the studies were to “evaluate the noise levels associated with the Range for the area immediately surrounding the Range through the use of a computer generated noise model, and based on site-specific sound level measurements of various firearms.” Acoustical Consultants Inc. has modelled two scenarios: the first based upon a worst case scenario of each firearm being discharged at the same time. The modelled noise levels ranged from 50.5 to 72.7 dBA Leq1second. The second modelling was for Leq15minutes, which is for noise over a 15 minute period, which resulted in noise levels ranging from 35.4 – 57.3 dBA Leq15minutes. The conclusion of Acoustical Consultants Inc. was that since the Leq15minutes noise levels are below the maximum allowable day-time permissible sound level of 85 dBA Leq15minutes the noise of the Club are in compliance with and well below the County’s Bylaw. Accoustical Consultants Inc. also reviewed the monitors for the times at which complaints were made. The data from the monitors revealed that the noise levels on the monitors did not exceed the level in the Bylaw.

[69] The appellants did not retain a professional engineer, with the exception of Ms. Kessir and Mr. Hoshowski. The evidence from the appellants was that the noise from the Club coming from the shots was having a significant, negative effect on their ability to use their property. The Board heard from a number of the appellants that they cannot use their property due to the noise. The Board notes the following examples, although all appellants argued that the noise from the Club was negatively affecting them. Ms. Kessir, who is taking courses at the University, told the Board that she could not study at her house due to the noise. She stated that she cannot host family events at her house due to the noise. Mr. DeGeer, in his affidavit, stated that the noise is always an annoyance and is often unbearable, even if he is inside his house. The noise is affecting his health. Ms. Carter played recordings for the Board which reflected the noise over several minutes during which time there were many shots. The Smiths provided audio files of the noise on their deck, including spreadsheets outlining decibel levels beyond the Bylaw readings. [70] The acoustical report of Donald Olynyk submitted by Mr. Hoshowski and Ms. Kessir distinguishes between continuous noises and impulse noises. It states that the limit in the County’s Bylaw does not address the annoyance that residents experience from being exposed to gunshots. Although it does not set out a recommended level for impulse noises, it does note that the Leq method, which averages sound energy in a period of time, will not accurately measure the peak of an individual short burst of noise.

[71] The Board also reviewed the RCMP “Shooting Ranges and Sound” document which discusses the impulsive sound from gunshots as well as the annoyance caused by the impulsive sound and the Environmental Noise Guideline of the Ontario Ministry of the Environment. The Ontario document set out recommended levels for impulsive noise.

[72] The Board accepts that the modelling conducted by Acoustical Consultants Inc. showed levels below the noise level in the County’s Bylaw. However, the Board notes that those results were modelled, rather than the result of actual data. The Board also noted the information

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from the Club’s noise monitors (see as one example of this page 2/115 of the Club’s submissions), which sets out the data collected from the monitors. The Board notes that the monitors were placed at or near the property lines of the Site, not at the properties of the Appellants. There was conflicting evidence on whether the location of the monitors was in the best location to determine the impact of the noise on the appellants. The Board notes that the Club used only 2 monitors. While the Board notes that this was agreed with County staff, the Board is not satisfied that the use of only 2 monitors fully reflects the impact of the noise from the Club on the landowners.

[73] The Board prefers the evidence of the landowners. This evidence reflects their experiences and speaks directly to the impact that the noise has upon them. The Board recognizes that the appellants’ evidence is not expert evidence. However, the Board prefers this evidence as reflecting the actual conditions and impacts of the noise on the appellants, rather than the information prepared by Acoustical Consultants Inc. which was created by modelling.

[74] The Board notes that the levels in the Acoustical Consultants Inc. reports (the modelled data, and the data from the monitoring) show that the noise levels are below the levels in the County’s Bylaw. The Board does accept this evidence. However, the issue before this Board is not whether there has been an infraction of the Bylaw, nor is the role of the Board to make a determination of what impulsive noise level is acceptable or not acceptable. This Board is tasked with determining whether the Indoor/Outdoor Recreation Services use by the Club is compatible with the neighbouring country residential uses. In making its determination, one factor that the Board has considered is the compliance with the Bylaw levels. However, the Board also considered the impact that the impulsive noise has on the appellants. The Board accepts that impulsive noise has a greater impact because of its sporadic nature, causing a “fight or flight” response.

[75] The uncontroverted evidence before the Board was that the appellants are restricted in the use of their properties due to the noise. Some appellants, like the DeGeers, have suffered health impacts due to the noise. Others claim they cannot make use of their yards due to the noise. Still others have stated that they cannot host family events because of the noise. Some must leave their houses to find peace and quiet to study. The evidence is that the Club is busiest during the warm weather, which is the time that many people wish to spend outside in their properties. The above limitations have a significant negative impact on the appellants, which indicates to the Board that the use for which development approval is sought is not compatible with the country residential uses which surround it.

[76] The Club did not deny the impact on the neighbours, but responded with an argument that the noise levels were lower than the Bylaw levels. The Board acknowledges that the evidence in the Acoustical Consultants Inc. reports show levels below the Bylaw levels. However, as set out above, that does not fully address the issue of the compatibility of the use with the neighbouring residences. Even though the levels may be lower than the Bylaw levels, this does not change the fact that the appellants are suffering an annoyance and disturbance arising from the noise coming from the Club. The evidence is that the annoyance and disturbance is not trivial or fleeting. The Club’s hours of operation (from the 2014 approval) are from 9:00 am to 9:00 pm Monday to Friday, 10:00 am to 5:00 pm Saturday and 11:00 am to 5:00 pm Sunday and statutory Holidays (with gunfire ceasing at sunset, regardless of the

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hours). This means that the noise occurs 7 days a week, often for long hours each day. There is no day during the week when the appellants do not hear the noise. The number of days and the length of the days during which noise is generated creates a significant impact on the appellants.

[77] The Board finds that due to the noise which comes from the Club the use is not compatible. The Board finds that the impact on the neighbours due to the noise impact alone is sufficient reason to deny the permit. Safety [78] The appellants also raised the issue of safety.

[79] The Board heard a number of comments about the safety zone. However, the Board has no jurisdiction over the safety zone. The Chief Firearms Official is responsible for ensuring that the Club complies with all applicable federal legislation and regulations. The Board notes that the Chief Firearms Official has approved the Club.

[80] The appellants, especially those who live north of the Site, spoke about stray bullets leaving the Site, and their fear for their safety. Mr. DeGeer deposed in his affidavit that in 2013, he found a bullet in the stucco of his house. In his written statement, Mr. Gamble wrote that there was one incident 5 or 6 years ago, and a second about 3 years ago.

[81] There was no evidence of any stray bullets in the last year of operations since the Club had implemented safety measures, including sandy aggregate on the floor which is to assist to prevent ricocheting, moving the shooters off the ground to prevent ricochets so that the shooter cannot depress the barrel and hit the floor of the range; increased supervision to prevent inexperienced shooters from having a bullet leave the range. In addition, the Club advised that the berms are 81 feet (four times the required height), and it has prohibited steel core bullets. The Board commends the Club for the increased safety measures it has installed.

[82] However, the Board finds that safety is a significant issue that it should consider in determining if the use is compatible. Although there have been a number of improvements made by the Club, there is no guarantee that a bullet might not escape from the Site. While the probability of a stray bullet appears to be low, the impact of that risk is high. The Board finds that the risk of a stray bullet on the neighbouring country residential properties is still significant. The Board notes that some of the appellants have limited the use of their property due to their concerns about safety. In the Board’s view, this limitation of the residential neighbours indicates that the use is not compatible.

Environmental Concerns

[83] Finally, the appellants raised concerns in relation to environmental contamination from the use of the Site as a gun range. A number of the appellants spoke about the health impacts of lead contamination, and the impact of introducing lead contamination into the human food chain. This information was general in nature. There was no evidence presented to the Board

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that the Club’s use of the Site had caused any lead contamination, either in the soil, or through leaching, into the nearby water. [84] Mr. Philpot did provide the Board with a document “Certificate of Chemical Analysis” reporting on the levels of various substances in his water. This report showed the level of lead at 0.042 mg/L. However, there was no evidence before the Board about what the levels were prior to the start of the Club’s use of the Site, nor any evidence which linked the Club’s operation to the levels in his water.

[85] The Board does not have sufficient information to determine that there is an environmental impact from the use. The Board does not find this ground raises issues of compatibility of the use.

[86] The appellants argued that the County would have the responsibility to clean-up the property at the end of the use, which they argued was a reason to refuse the development permit. The Board accepts the evidence of the Club that the property owner and the Club have the responsibility to clean-up the property at the end of the use, and that it would not be the responsibility of the County to do so. The Board finds the issue of who cleans up the property after the cessation of use is not relevant to the question of the compatibility of the use. [87] For the above reasons, the Board refuses to grant the development permit.

Issued this 23th day of October, 2015 for the Parkland County Subdivision and Development Appeal Board

For Mark Gunderson, Chair SUBDIVISION AND DEVELOPMENT APPEAL BOARD This decision may be appealed to the Court of Appeal of Alberta on a question of law or jurisdiction, pursuant to Section 688 of the Municipal Government Act, R.S.A. 2000, c.M-26. This section requires an application for leave to be filed with the Court of Appeal of Alberta within 30 days of receipt of this decision. APPENDIX “A” REPRESENTATIONS PERSON APPEARING

1. Karen Kormos, Development Planner

2. Joey Singer and Laurie Boise

3. Lee Santon

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4. Scott Bradley

5. Cheryl Ball

6. Leanne and Jeff Smith

7. Allen and Rhonda Lakeman

8. Kate Hurlburt, Emery Jamieson for Darren and Natasha DeGeer

9. Jody Hoshowski and Teresa Kessir

10. Gordon and Janet Carter

11. Allan Gamble

12. Community Group represented by Cheryl Ball and Greg Miller

13. Joel Babineau

14. Keith Wilson of K. Wilson Law Office for Spruce Grove Gun Club,

15. Grant Kirkup, Board Member, Spruce Grove Gun Club

16. Bill Newton, Member, Spruce Grove Gun Club

17. Linda McIntosh

18. Travis VerBeek

APPENDIX “B” DOCUMENTS RECEIVED AND CONSIDERED BY THE CARB:

Tab Description Date

1. Appeal Letter of J. Singer September 4, 2015

2. Appeal Letter of J. and L. Smith September 2, 2015

3. Appeal Letter of L. Santon September 7, 2015

4. Appeal Letter of S. Bradley September 7, 2015

5. Appeal Letter of C. Ball September 8, 2015

6. Appeal Letter of A. and R. Lakeman September 8, 2015

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7. Submission of D. and N. DeGeer September 9, 2015

8. Appeal Letter of T. Kessir and J. Hoshowski September 9, 2015

9. Appeal Letter of G. and J. Carter September 8, 2015

10. Appeal Letter of A. Gamble September 10, 2015

11. Appeal Letter of J. Philpott September 11, 2015

12. Appeal Letter of Community Group September 11, 2015

13. Appeal Letter of J. Babineau September 11, 2015

14. Parkland County SDAB Administrative Report September 15, 2015

15. Parkland County Discretionary Use Approved

Development Permit Conditions

August 28, 2015

16. Spruce Grove Gun Club Development Permit

Renewal Application

July 31, 2015

17. Notice of Decision of SDAB to J. Singer August 7, 2015

18. Letter to J. Singer re: Noise Complaints and

Conditions Associated to Development Permit 09-

D-098

September 8, 2015

19. Email Correspondence

20. Submission of L. Santon – None Received and

Submission of S. Bradley – None Received

21. Submission of C. Ball September 22, 2015

22. Submission of A. and R. Lakeman – None Received

23. Submission of D. and N. DeGeer September 22, 2015

24. Submission of T. Kessir and J. Hoshowski September 21, 2015

25. Submission of G. and J. Carter September 7, 2015

26. Submission of A. Gamble, J. Philpott, Community

Group, and J. Babineau – None received

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27. Submission of K. Wilson, Wilson Law on behalf of

Spruce Grove Gun Club

28. Submission 09-D-098 Carter Video 001





33. Spruce Grove Gun Range Drone Video

34. 2 Field Photos taken 0915 September 28, 2015 September 28, 2015

35. Excerpts of the Environmental Protection and

Enhancement Act

(6 pages)

September 28, 2015

36. Map Highlighting Surrey View Farms Ltd. (1page) September 28, 2015

37. Excerpt of Bylaw 2014-080 of the Corporation of

the Township of Uxbridge (1 page)

September 28, 2015

38. Letter dated September 22, 2015 from D. Olynyk

to T. Kessir re: Noise, Spruce Grove Gun Club (4

pages)

September 28, 2015

39. RSO Noise Schedule of May 28, 2015 between

6:54 – 7:01pm (2 pages)

September 28, 2015

40. Photo September 28, 2105

41. Excerpt of A review of the environmental impacts

of lead shotshell ammunition and lead fishing

weights in Canada (3 pages)

September 28, 2015

42. Letter from Canada Firearms Centre to G. Carter

enclosing maps showing safety zone areas for

shooting ranges (5 pages)

September 28, 2015

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43. E-mail dated September 5, 2014 from K. Kormos to

G. Heritage re SGGC

September 28, 2015

44. Emails dated November 16 and 17, 2014 between

J. Carter, P. Hanlan and R/ Shermack re Spruce

Grove Gun Club Noise complaint

September 28, 2015

45. Submission – Spruce Grove Gun Club October 1, 2015

46. Email from D. Tymchyshyn to Ms. Carter October 1, 2015

47. Decibel Log Sheet Audio Recording 09-D-098 October 1, 2015

48. decibel Log Data (2015-05-28) 09-d-098 (excel

spreadsheet)

October 1, 2015

Oct. 23, 2015 - Parkland County re: Spruce Grove Gun Club

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Transcript of Oct. 23, 2015 - Parkland County re: Spruce Grove Gun Club